State v. Woodward

23 Vt. 92

• Court: Supreme Court of Vermont
• Decided: December 15, 1850
• Status: Published

Opinion

The opinion of the court was delivered by

Kellogg, J.

Two questions only are raised by the bill of exceptions.

The first question involves the enquiry, whether the place, where the alleged nuisance was erected, was a public common. The land was purchased by the town of Westford as early as 1819, and it has been argued on behalf of the prosecution, that, b.y the deed of conveyance, the land was dedicated to the use of the public. But we think this proposition cannot be sustained. The deed from Curtis to the town will hardly bear such a construction. It is true, that by the deed .it appears, that the parties, at the time of i'ts execution, contemplated that the land would be appropriated as a public common. But we do not think the language of the deed is such, as to warrant the conclusion, that the grant was made upon condition that it should be devoted to public use, so as to work a forfeiture of the grant upon failure of the condition. That the fee passed by the conveyance would seem to be settled by the case of Beach v. Haynes, 12 Vt. 15, which was a grant similar in character to the present.

It is, however, urged, that the land in question, after the purchase by the town became and was dedicated to the public, by the permission and acquiesence of the town in the long and uninterrupted use of it by the public. The facts, upon which this claim is founded, are, as appears by the case, that, ever after the purchase of the land by the town, the public were suffered to use it as a public common, —that in 1825 the town made a survey of the common, embracing the land in question, and placed the same upon the town records. This was an unequivocal act of the town, manifesting an intention to set apart the land as a public common. This was followed by an uninterrupted use of it by the public from that time until 1844, when the act was done, which is charged in the indictment. This amounts to a dedication of the land to the use of the public, which was irrevocable, and we think fully justified the charge of the court upon this part of the case.

2. It is urged, that the question, whether the act charged upon the respondent was a nuisance, should have been submitted to the jury and in support of it several cases are cited, which are claimed as sustaining the proposition. Whether, in cases of this kind, the question should be put to the jury must depend upon the character of the nuisance charged in the indictment. If the act complained of does not divest the property, or any part of it, from the use of the public, or in any manner impair the public use and enjoyment of it, but the act was done for the purpose of making the use more beneficial to the public, there would seem to be a manifest propriety in submitting the same to the jury. And the cases which we have examined, where the question has been submitted to the jury, seem to have been of this character. But where the act complained of is the taking of property dedicated to the use of the public, and appropriating it to private use, thereby wholly excluding the public from the enjoyment of it, we are not aware of any rule of law, that requires such an act to be submitted to the jury, to say whether it is a nuisance. Such is the character of the act, with which the respondent is charged; and in the judgment of the court, it is ipso facto, in law, a nuisance, for the commission of which there can be no justification.

This disposes of the questions presented; and as we find no error in the proceedings of the court below, the respondent will take nothing by his exceptions.