Robinson v. Winch

66 Vt. 110

• Court: Supreme Court of Vermont
• Decided: July 1, 1893
• Status: Published

Opinion

START, J.

The defendant, as one of the board of selectmen of the town of Barre, entered upon the plaintiff’s land for the purpose of laying out a highway. The selectmen laid out a highway over the plaintiff’s land, and the defendant subsequently entered upon the land over which the highway was laid and built the highway.

It does not affirmatively appear that the selectmen notified the plaintiff of the time when, or the place where, they would hear him upon the question of whether the public good or convenience of individuals required such highway; but it does appear from the record that they heard “ all parties interested, as the law requires.” The plaintiff was an interested party, and it sufficiently appears from the record that he was heard upon this question; and it does not appear that he made any objection on account of the insufficiency of the notice. By thus appearing and being heard he waived any objection he might have taken on account of the insufficiency or want of notice. Brock v. Barnet, 57 Vt. 172.

It does not appear from the record that the plaintiff was heard upon the assessment of his land damages, or that he was notified of the time and place of hearing claims for damages. For this omission of the selectmen the plaintiff cannot attack their doings in this collateral manner. State v. Vernon, 25 Vt. 244; Haynes v. Lassell, 29 Vt. 157. He has his remedy under R. L., s. 2932. In Slicer v. Hyde Park, 55 Vt. 481, it is held that a mortgagee of land, over which a highway is laid out without notice to him, has, under this section, ample remedy for the enforcement of his rights.

It is claimed that the record of the laying out of the highway is defective, in that no permanent monuments are established at either end. The highway commences at the northerly end of the highway, or pent road, leading past the dwelling house of J. S. Robinson at a point near where there was formerly a starch factory, the pent road being described in volume 2, p. 216, of the town records of Barre. The point of commencement is thus fixed with sufficient certainty, and, by following the courses and distances indicated in the record, to the land of Henry Upton, the other terminus is ascertained with certainty. The court below found the survey and record sufficient, and we think there is not such uncertainty in the records in this respect as ought to render the doings of the selectmen void. Kidder v. Jennison et al., 21 Vt. 108.

The omission of the selectmen to fix a time in which the plaintiff should remove his wood, fences, etc., as is provided in R. L,., s. 2926, did not affect the validity of their acts in laying out the highway. Kidder v. Jennison, supra.

The selectmen did not make and file in the town clerk’s office a certificate that the highway was open for travel until after this suit was brought. The claimed trespasses were committed by going upon the plaintiff’s land for the purpose of laying out the highway and building the same, and these acts necessarily preceded the making and filing of the certificate. The selectmen could not properly make this certificate until the highway was worked and ready for travel. R. L., s. 2929; Patch v. Doolittle, 3 Vt. 457. It does not appear that the highway was worked and ready for travel, so that the selectmen could have filed their certificate earlier than they did; and we cannot say that the certificate was not seasonably filed.

It is objected that this is not a public highway, because it does not connect with a public way. The highway connects with Henry Upton’s prescriptive way over the plaintiff’s land, and appears to'have been laid out for Upton’s benefit. The case of Brock v. Barnet, supra, is sufficient authority for holding that the highway thus laid out is a public way. In that case, the highway was laid out for the special benefit of one Carrick, and stopped at his farm line fifty-four rods from his farm buildings ; and it was held to be a public way.

yudgment affirmed.