58 Vt. 567 | Vt. | 1886
The opinion of the court was delivered by
The statute allowing questions of law arising upon the trial of petitions for establishing or discontinuing highways and the assessment of damages growing out of such petitions to be passed to the Supreme Court upon exceptions as in other cases, provides that no judgment of
The application to the County Court for the appointment of commissioners to review the work of the selectmen and inquire into the necessity and convenience of the highway as laid out by them and as to the damages sustained by the petitioners, is a proceeding for the correction of any errors which the selectmen may have made in the premises complained of, and does not, of itself, vacate their action. It stays or suspends the opening of the highway until the decision of the court upon the report of the commissioners; and when no error is found the action of the selectmen, in effect, is confirmed by the County Court.
The commissioners have made a, certified copy of the record of the doings of the selectmen in laying out the highway in question a part of their report, and report that the public good and the necessity and convenience of individuals require a highway in substantially the same location selected by the selectmen; and that a highway two rods wide will be adequate for the travel at that place.
To this order of the court, the petitioners excepted, and they now insist that the order is erroneous, because it establishes, as they contend, an open highway of less than three rods in width, which the statute prohibits.
All highways, whether open roads, cross-roads, lanes, or pent roads, are public highways. Wolcott v. Whitcomb, 40 Vt. 40. The record of the doings of the selectmen shows that they laid out a highway two rods in width, without any designation as to whether it was an open road, crossroad, lane, or pent road; and the County Court accepted the report of the commissioners recommending the establishing of the highway as located and surveyed by the selectmen, and by its order established the same highway without any designation in the order as to whether it is an open road, cross-road, lane, or pent road.
As it does not appear affirmatively what kind of a highway was established by the County Court, the court will not presume that it was an open highway which could not be legally established of less width than three rods, but will presume that the County Court established by its order such a highway as might be legally established of the width of -two rods.
The highway in question was surveyed and laid out by the selectmen under the provision of sec. 2915 R. L., before it was amended by the Act of 1884, so as to authorize the laying of certain open highways in incorporated
The highway described in the report is a highway two rods in width, of which width a cross-road or lane may be established; and the County Court had power by its order to establish such a highway upon the report of the commissioners; but it does not appear from the exceptions that it attempted to, or did, in fact, establish any other. There is no legal presumption that the establishment of a highway two rods in width, without designating it as an open highway, is an open public highway. The presumption is, as before stated, that it is such a highway as may be legally established of the width of two rods.
It is not necessary that the selectmen or County Court, in establishing a cross-road or lane, to be used as a pent road, should make any order or regulation as to the erection of gates or bars at the termini thereof. Sec. 3004 B. L. provides: “ That the selectmen may allow pent roads to be enclosed and occupied by the owner of the land during any part of the year, and bars and gates to be erected thei-eon; and such permission and any alterations therein shall be in writing and recorded in the town clerk’s office.” It is not essential that this permission to enclose the land shall be included in the order establishing the road; and, unless the convenience and necessity of the land-owner requires it, the permission need not be given at all. The omission to give such permission to enclose the land in the order establishing
In this case the selectmen and County Court properly omitted to make any order for the erection of gates and bars across the road on the land of said Methodist Episcopal Society during any part of the year; for the society is, by the terms of its agreement made by its stewards with the Lanes and Currier, under obligation to keep the same open and unenclosed and unobstructed for free passing to and from said persons’ premises. And where no necessity exists for allowing the owner to enclose the road with gates and bars, no such order or permission should be granted. The report does not show that the necessity or convenience of any land-owner, through whose land the road was laid, requires that the road should be enclosed by gates or bars during any part of the year; and it was not error for the County Court to establish the road without giving any permission in its order for the erection of gates and bars.
We think, also, that there was no error made by the County Court in the award of land damages to the Methodist Episcopal Society of Barre. It appears from the report of
It is well settled that when a principal, with a knowledge of the facts, adopts and takes the benefit of the acts of his agent, though the acts are contrary to duty, and in excess of authority given, he shall not afterwards impeach the agent’s acts in that particular. And this principle is peculiarly applicable to a case like the present. The long lapse of time, the society’s strict observance of its stewards’ agreement during that time, and its retention of the consideration, indicate the. society’s full approbation of, and acquiescence in, its stewards’ acts in making the agreement; and it is now estopped from denying its validity. Under the agreement, the strip of land crossed by the highway cannot be enclosed and built upon, and its use by the society is restricted and limited, as expressly provided in it.
We think that the commissioners, in their finding that
As no injustice has been done, and as no error is apparent upon the record and proceedings of the County Court, the judgment of the County Court establishing the highway, described in the commissioners’ report, is affirmed. Lands to be opened for work by the 15th of January, 1887, and highway to be opened for travel within one year. The judgment of the County Court in favor of-the Methodist Episcopal Society of Barre for $250 damages is also affirmed, payable within sixty days, and the petitionee to recover costs.