42 Vt. 651 | Vt. | 1870
The opinion of the court was delivered by
The petition in the original case prayed for a highway extending into Wallingford and Mount Tabor, and upon its face the county court had rightful jurisdiction of it. Ultimately a road was laid out lying wholly in Wallingford, which the selectmen of that' town would have had jurisdiction to lay out and establish, but the fact that the selectmen would have had jurisdiction did not operate to take away the jurisdiction that the county court had rightfully acquired. Powers v. Thayer et al., 30 Vt., 361. The demurrer to the declaration was properly overruled.
When the time within which the defendants were ordered to pay to the plaintiff his land damages had expired, and the damages had not been paid, his claim for damages became a perfected judgment against the defendants, upon which he was entitled to execution immediately. Comp. Sts., ch. 22, § 58, then in force. Gen. Sts., ch. 24, § 70.
This suit is brought by the plaintiff to enforce that judgment, and he is entitled to reeover unless something has been done since the judgment to annul or satisfy it.
Before the General Statutes went into effect, the discontinuance of a highway before it was built did not affect the judgment of a land-owner, over whose land it had been laid, for his land damages. This was held in the case of the Town of Townshend v. Josiah Taft, decided at the general term, 1862, and not reported. That was a bill in equity brought by the town of Townshend to be relieved from the effect of a judgment for land damages, and to have the collection of the execution issued. upon it enjoined, upon the ground that a large part of the highway had been discontinued without having, been built. The relief was denied and the bill dismissed. Similar decisions were made in Massachusetts with reference to similar judgments upon statutes substantially like ours
Our law was changed by the adoption of sections 82 and 83 of chapter 24 of the General Statutes. It is not claimed that the provisions of these sections have any bearing upon the decision in this case, and they do not in fact have any such bearing; they apply only to cases where proceedings are regularly had for the discontinuance of an unbuilt highway; and no such proceedings have been had in this case. This case stands therefore just as it would have stood when Townshend v. Taft was decided.
It is clear that if the discontinuance of the highway would not have affected the plaintiff’s judgment, the loss of the right to build the highway by the lapse of time would not; especially when the time was suffered to elapse under an agreement that substantially the same road should be built although under different authority. The time was suffered to elapse without building the road to enable the defendants to have a road laid there which could be controlled by the selectmen of the town and not for the purpose of relieving the plaintiff’s land'. The survey was changed in some places but whether to the benefit of the plaintiff or not does not appear; but whether he was benefited by the change or not, it would not affect his judgment for damages unless he agreed that it should, and it does not appear that he made any agreement about it. He assented to the change in the survey, but did not intend to waive his claim for damages. He might well assent to the change in the survey without agreeing to waive his damages, or his judgment for damages, therefore his assent in this respect cannot be held to affect his claim beyond his intention.
The new appraisal of damages by the selectmen was a proceeding that the plaintiff did not invite or assent to and that he could not prevent; it had no relation to the judgment he already had, and could not affect it without his agreement. No such agreement is found in the case and the proceeding was wholly nugatory.
The judgment of the county courtis reversed and judgment, for the plaintiff for his original judgment with interest and costs.
