70 Vt. 62 | Vt. | 1897
This is a petition for a reassessment of the damages sustained by the petitioner through the taking of his property for the reservoir and pipes of the petitionee’s water system. The petitioner insists that the report of the commissioners should be set aside because of its failure to
The petitionee’s officers entered upon the petitioner’s premises and commenced operations without moving for a condemnation of the land, believing that the damages could be agreed upon. Upon learning that the petitioner was dissatisfied with this course, they suspended operations and awaited the action of commissioners. After the petitionee had applied for the appointment of commissioners, the petitioner sued the officers in trespass. The assessment under review includes twenty-five dollars for what was done before the condemnation proceedings were commenced. The petitionee treats this as covering only what might lawfully have been done under the act, and concedes a further liability for whatever may have been done in excess of the authority conferred. Then if the petitionee is entitled to have all the damages occasioned by such a taking as the act contemplates adjusted in this proceeding, the judgment should be for the assessment as made.
It is not necessary to consider what the rights of the petitioner would have been if the petitionee had failed to commence condemnation proceedings, and the petitioner had brought his suit in trespass in default of such action. The petitionee having applied for the appointment of commissioners before the petitioner brought his common law action, it seems clear that all the damages arising from such a use of the land as is authorized by the act should be ascertained in the manner therein provided. It is not questioned but that the petitioner may recover in trespass for things not within the scope of the enabling act, whether done before or after the application for commissioners was made. As these actions stand, the only line of separation in assessing damages is the power conferred by the act. Whatever is done upon the land that is within the
We do not understand the petitioner to claim that he would have been entitled to have his damages assessed by a jury, if the condemnation had preceded the entry. We understand his claim to be that inasmuch as the entry was unauthorized, and such as entitled him to maintain trespass, he became entitled to an inquiry by jury as to so much of his damages as accrued before the application for commissioners, and that the assessment of those damages cannot be drawn into this litigation without depriving him of a constitutional right. But, inasmuch as the legislature had power to authorize a taking of the property on the assessment of commissioners, and had conferred this authority on the petitionee, we think the petitioner cannot insist upon a jury trial for acts which were within the scope of the authority conferred, and which therefore became a part of
The question of costs was not raised in the county court, and will not be considered here.
Judgment affirmed.