Haynes v. Lassell, 29 Vt. 157

Haynes v. Lassell

29 Vt. 157 | Vt. | 1857

The opinion of the court was delivered by

Redfield, Ch. J.

The only question in the present case is in regard to the discontinuance of a town highway. The town, at their regular March meeting, voted to have the road discontinued upon previous notice in the warning to that effect, and the selectmen, upon the petition of the requisite number, ordered the road to be discontinued, and made the proper record in the town clerk’s office.

The return of the selectmen does not show any hearing in regard to the matter, or any notice to any one in regard to it; and from the nature of the case and the decision of this court in exparte Bostwick, 1 Aik. 216, it would seem questionable whether the same notice to land-owners across whose land the road lies is requisite in the discontinuance of a highway, as in laying one. The petitioners should undoubtedly have notice, and there is no complaint here from that quarter. But in regard to the land-owners the case is somewhat different whether a road is to be laid or discontinued. In the one case their property is to be taken for public use, which can only he done upon proper compensation. And in regard to the extent of such compensation they have a direct pecuniary interest, and are entitled to be heard. The condemnation of land for the use of a highway is in the nature of a judgment inter partes, to the validity of which, notice, actual or presumptive, is indispensable. But the discontinuance of a highway, although a judgment in some sense, operates in rem altogether. There is nothing in the nature of a judgment inter partes. The land-owners may be interested to a greater extent than others, but the interest is of *160precisely the same quality as that of any other person. It is an interest of a public character in the use of the road. It is obvious that the provision in the statute requiring notice to land-owners, has exclusive reference to cases of laying roads, as the selectmen are to give notice when they will hear claims for damages, which do not exist, of course, when roads are discontinued.

But if we hold that such notice is necessary to the land-owners even, according to the settled rule of decision in this court, the factum of discontinuance is prima facie, and until set aside by some proceeding taken for that purpose, binding and of force, and the preliminary proceedings to be presumed to have been regular. Any other course of decision would be attended with incalculable embarrassment, and would invite endless controversy for a succession of years. While this course, by leaving the party aggrieved to his redress by certiorari mandamus or other proper remedy, denies no one speedy relief, and at the same time shields those from injury who have acted in good faith, and honestly endeavored to pursue the law. This is fully decided in Kidder v. Jennison, 21 Vt. 108.

Judgment affirmed.