This is a suit in equity in which the plaintiffs, as owners of land with a dwelling house thereon and abutting upon the westerly side of an alleged public highway or street, known as Fifth Avenue, in the village of St. Johnsbury, allege that on June 21, 1942, the easterly side of said street opposite the plaintiffs' premises was washed out for a long distance and to a great depth and far into the traveled portion thereof, and that the retaining wall on the easterly side of the street which had supported the road surface had been displaced and weakened by the washout, whereby the street became unsafe and dangerous for travel. They further allege that the defendants, as trustees and village manager respectively of the village, although requested, have wilfully and arbitrarily refused and neglected to replace and repair the retaining wall and fill the washout, and make the street passable and safe for travel; that the washout has greatly depreciated the value of the plaintiffs' premises and caused them great damage; and that the washout and dangerous condition have become a public nuisance. They seek a mandatory injunction restraining the defendants from maintaining such public nuisance, and ordering the defendants to forthwith fill the washout, replace and repair the retaining wall, and put the street into a safe and proper condition for travel. The defendants demurred in their answer for reasons later herein mentioned. The demurrer was seasonably brought on for hearing, when it was overruled subject *Page 513 to exceptions, and the benefit of the demurrer was reserved and saved to the defendants until the final hearing. The cause was then heard upon the merits. The principal issue of fact was whether Fifth Avenue, which had never been laid out as a highway, had become a highway by adoption. The chancellor found that it had, and that the condition of the street resulting from the washout constitutes a public nuisance. The decree orders the defendants to abate the condition found to be a public nuisance by repairing said condition in such manner as to make the street safe for public travel, and to thereafter maintain the street in good and sufficient repair and keep the same safe for public travel. The cause comes here upon defendants' exceptions.
Here, as in Smythe v. Central Vermont Ry. Co.,
In their demurrer the defendants insist that the plaintiffs have not stated in their bill of complaint any case justifying the intervention of a court of equity, and among other things assert that the plaintiffs have a full and adequate remedy at law by virtue of the provisions of Chapter 205 of the Public Laws relative to county road commissioners and relative to the indictment of a town for neglect to repair a highway, and by virtue of mandamus proceedings, if they are entitled to any remedy or relief whatsoever.
Towns and other municipal corporations created for governmental purposes are not liable to a private action for neglect to keep their highways in repair, unless such liability is expressly imposed by statute. Moody v. Town of Bristol,
The village of St. Johnsbury derives its powers from No.
So far as the remedies by application to the county road commissioners or by indictment, mentioned in Chapter 205 of the Public Laws, are concerned, only towns are mentioned, which by P.L. 41 shall include cities. It is clear that these remedies only apply against towns and cities, except possibly in the case of a village whose charter is like that of the former village of Barre, referred to in Crockett v. Village of Barre,
"There may be some incongruity in having a concurrent power to lay out and discontinue highways in a village, vested in the selectmen of the town and the trustees of the village. But we think if it had been the purpose of the legislature to deprive the selectmen of the town of all control over the subject, some more specific provisions upon the subject would have been considered necessary.
"As the law now stands there is no provision for compelling the village by indictment to keep their highways in repair, or for maintaining an action against them for losses sustained by reason of defects therein. And there is no provision, upon the construction claimed, for laying highways continuously, part of which lie within the limits of the village and part without.
"We think these matters should be provided for, and the burden of maintaining highways in the village, and liability for damages on account of defects therein, be transferred to the village, before we could feel justified, by mere construction, in depriving the selectmen of the town of all control over the subject."
See also Landon v. Village of Rutland,
The plaintiffs call attention to P.L. 4870, providing: "A town shall keep in good and sufficient repair at all seasons of the year its highways and bridges, other than those on the state highway system", and insist that this duty is imposed upon the village of St. Johnsbury by the charter provisions which we have mentioned. Because we think that the plaintiffs have failed to make out a case for relief by a suit in equity it seems unwise and unnecessary to decide this question until resort is had to a more appropriate remedy, and we can have the assistance of counsel in construing the provisions of the village charter and the Public Laws in connection with the holdings in the cases last above cited.
If a duty is imposed upon the village of St. Johnsbury, or its proper officers, to maintain and repair its streets and highways, for which it or they are liable to a private action, mandamus will lie, in the absence of another adequate remedy, to compel the performance of this duty, but will not interfere with the discretion of its officers as to the character of the repairs that shall be made. State ex rel. Robinson v. Board of Comrs. ofOhio County,
If mandamus affords a plain, speedy and adequate remedy, in the sense that it is as practical and efficient to the ends of justice and its prompt administration as the remedy in equity, equity has no jurisdiction. Bourke and Higgins v. Olcott WaterCo.,
Because the plaintiffs term the washout a public nuisance avails them nothing. They are seeking to compel the defendants to repair the damage caused by the washout and to put the street back into a safe condition. If the defendants are liable to a private action in this regard, terming the washout a public nuisance does not entitle the plaintiffs to equitable relief when mandamus is an adequate remedy.
The plaintiffs suggest that it is doubtful whether this Court by mandamus would have jurisdiction to order the continued maintenance of the street after it has been once repaired, as the chancellor has done. It is significant that the bill of complaint does not ask for continued maintenance. Whether or not the continued maintenance of the street could be ordered by mandamus, such an order would be unwise and unnecessary. The history of the case shows that there is a bona fide dispute as to the liability of the village to repair and maintain this street. If, and when, the village has been found so liable no further trouble can be anticipated. If Fifth Avenue is a public highway the discretion of the trustees to discontinue or relocate it, should proper occasion arise, should not be controlled by injunction or mandamus. Moreover, the order for continued maintenance is not permanent. It can only apply to these defendants during their terms of office.
We hold that the court of chancery is without jurisdiction in the premises. It is unnecessary to consider the other exceptions.
Decree reversed, and bill of complaint dismissed with costs tothe defendants. *Page 518