53 Vt. 364 | Vt. | 1881
The opinion of the court was delivered by
The statement in the exceptions that the County Court, “ upon the whole case rendered judgment for the defendant,” means upon the whole case as made up and tried in that court; that is, on a trial upon the merits, on a denial of the allegations set forth in the declaration. It does not mean, as the case might have been made up, or would have been made up if the defendant had met the declaration with a demurrer, or the findings of .fact with a motion in arrest of judgment. There is nothing in the exceptions to show that the defendant before the County Court raised the question whether debt was the proper form of action, or whether the action itself was defectively set forth in the declaration. An objection, that the declaration is defective should be taken by demurrer or a motion in arrest of judgment ; and the point is not properly raised on a trial of the issues of fact. Crocker v. Gilbert, 9 Cushing, 131. Hence, the contention of the defendant, that debt cannot properly be maintained on the statute declared upon, and that the allegations as to the establishment of the road, and removal of the gate are defective, are not properly before this court. This court can only revise the rulings of the County Court in matters which the exceptions show affirmatively were before, and passed upon by, that court. But if these contentions were properly before this court, we do not think that they would be maintainable. There is no such uncertainty in the sum recoverable as a penalty, as defeats the right to maintain debt upon the statute therefor. The findings of fact, by the County Court, stand in place of a verdict by the jury. After verdict every reasonable intendment in favor of the allegations of the declaration when met by a motion in arrest of judgment is to be made, and some defects in the declaration that would be fatal when met by a general demurrer even, are cured. The allegations of the declaration in reference to the establishment of the road with gates, and in reference to the removal and leaving open
The finding of the County Court that the defendant “ wilfully left the gate open at various times, and the plaintiff’s crops were thereby exposed to injury from his cattle grazing in said pasture,” plainly implies that the gate was shut when the defendant came to it. Such opening and wilfully leaving open the gate, we think, is such an act as was contemplated by the statute, and is included in the words “ wilfully remove any gate.” The gate when shut was a barrier restraining the cattle in the pasture from the crops in the field. When opened and left open by the defendant, it was as effectually removed as such barrier as though it had been taken from the hinges and carried away, or thrown upon the ground.
Nor, do we think the contention maintainable that the County Court had no right to establish gates when laying out and establishing the pent road. The power of the County Court on proper proceedings to lay out and establish pent roads has been recognized by the decisions of this court. Wolcott v. Whitcomb, 40 Vt. 40; Whitingham v. Bowen, 22 Vt. 317. As held in Wolcott v. Whitcomb, a pent road is one enclosed, at the termini; and the establishment of a highway as a pent road, gives the land-owner the right to erect gates across it where they are reasonably necessary to protect his crops, unless the court in establishing the road has fixed the places where they may be erected. The power to lay out and establish a pent road implies the power to determine the points where the enclosures may be made. This power is clearly given to the selectmen, when establishing a pent road. The County Court has no power or jurisdiction to lay out and establish highways, open or pent, wholly within a town, except that given by statute. The County Court, in laying out and establishing highways, does not exercise its common-law jurisdiction, but the jurisdiction conferred by the statute, which is substantially that of an appellate tribunal from the decision of the selectmen of the town. Whitingham v. Bowen, supra. The appeal is brought to the County Court by petition, rather than by having it allowed and certified by the selectmen, but the jurisdiction of the County Court is confined to the identical matter which the select
Again, it is contended that the plaintiff is not entitled to recover on the facts found, because a certified copy of the record of the County Court by which the road in question was established, was not recorded in the town clerk’s office of the town in which the highway was located. Such record is not requisite to the legal establishment of the highway. As has been frequently held, travellers are not bound to examine and find that such record has been made, before they can hold the town liable for injuries received through its insufficiency. The record is subsequent to the establishment of the highway, and no time is fixed in which it must be made, nor penalty imposed for failure to have the record made, nor is it declared that the failure to make the record shall affect the legal quality of the highway. The want of such record showing that the road was opened for travel, would probably protect the plaintiff in refusing to open the road to the public for travel. Patchin v. Morrison, 3 Vt. 590; Warren v. Bunnell, 11 Vt. 600. But when he had opened the highway to the public for travel and accepted, his damages, he had so far acquiesced in the laying of the road that he could not object that no certificate of opening the road had ever been filed with the town clerk. Felch v. Gilman, 22 Vt. 38. Hence on the facts found by the County Court, as to the plaintiff, the pent road was a legally laid and opened highway, and he was in the same need of the protection afforded by section 7, that he would be if the proceedings of the County Court establishing the highway were duly recorded in
The only other objection made to the plaintiff’s right of recovery is, that he has lost the right to erect and maintain the gate at that place by non-use of it for more than fifteen consecutive years. It is claimed such non-use amounts to a dedication of the plaintiff ’s right to the public. He did not give up the use of his right for the convenience of the public, but for his own convenience occasioned by a change in the location of his fence. The passage by the public, at that point, unobstructed by a gate, was not adverse to him, but in accord with his own convenience. There is not an ele
These views render the judgment of the County Court for the defendant erroneous, and that judgment is reversed, and judgment rendered for the plaintiff to recover a penalty of $5.00 and his costs.
