21 Vt. 108 | Vt. | 1849
The opinion of the court was delivered by
This is an action of trespass on the case for an injury to the plaintiff’s reversionary interest in a piece of land in Highgate, wherein the defendants justify, as selectmen of that town, by evidence tending to prove, that what they did was done by them in, their official capacity, in building a highway in the town, which had been laid, by their predecessors in office, across the plaintiff’s land.
The first question made in the case is, whether this defence can be received under the plea of the general issue. We entertain no doubt, that the defence was correctly received under that plea. In trespass quare clausum fregit it would no doubt be necessary to plead such justification specially, or give special notice of it; but in this action almost all defences are receivable under the general issue. I hardly know of any exception, unless it be the statute of limitations.
In regard to the merits of the case, it will be noticed, that this action is not against the defendants, complaining of them for some omission of official duty ; but it treats all their acts, in building the road, as mere torts. It becomes important, then, to determine, how far the acts of the former selectmen, in laying the road, are legal and operative, or how far they are so defective, as not to justify thése defendants in building the road.
- The only remaining inquiry is, whether there is any such defect upon the face of the survey, or in the proceedings of the former selectmen, as will render these defendants trespassers, as to the person in possession of the land, for building the road, and, by consequence, liable to the plaintiff in this action. The omission to specify a time for the land owner to lay the land open to be wrought is clearly not essential to the validity of the act of laying the road. The most the plaintiff could claim for that omission is damages, if he sustained any, — which he was allowed by the charge of the court. Whether, under this declaration, and'against these defendants, he was even entitled to that is more questionable. The omission to return the petition to the town clerk’s office is clearly nothing, which will render void the act of the selectmen in laying the road. It is, at most, an omission of a "duty, which cannot affect the validity of the act of laying the road, as it is a matter, in contemplation of law, wholly subsequent to the laying of the road, and in no sense forming any essential ingredient of that act. Whether the selectmen might proceed without any such petition it is perhaps not necessary to determine. If such petition is necesssary, we should, I apprehend, presume its existence and regularity, as we do always make all reasonable presumptions in favor of judicial and other analogous proceedings. Corliss v. Corliss, 8 Vt. 373. Omnia rite acta will always be presumed.
The only irregularities in this case, which seem to us of a serious-character, are those in regard to notice to those interested in the road, and those having claim for damages, — which, in the present case, is only the plaintiff. We think the most which can be claimed in regard to that, in the present case, is, that it amounted to no notice at all. Perhaps it did amount to this. But we do not think, that this omission of the former selectmen made the whole proceedings a nullity, to such an extent as to render the defendants trespassers for building the road.
The manner, in which the names of the selectmen were subscribed to the survey bill, although not the most common, was well enough, perhaps, as the three had examined the subject and determined to lay the road, and had decided upon the place where to lay
All the notice spoken of in the statute, to be given by selectmen, is either to the petitioners, or the land owners. The petitioners do not complain. The only land owner complaining is the plaintiff. The omission, in the present case, may be a flagrant one; but the effect upon the proceedings of the selectmen must be the same, whether the selectmen act in good faith, or bad faith, — with reasonable circumspection and deliberation and fairness, or the contrary,— when the land owners are known and notorious, or wholly unknown. And'we do not think, it could have been intended to render void the act of the selectmen in laying the road, for the omission to notify one of the land owners, or some one who might have an interest in the land across which the road was laid. The statute was intended as a direction to the selectmen in their duty, and perhaps to impose an obligation upon them, which, if they did not perform, when they, might, should form the ground of an action in favor of any one aggrieved, but nothing more. Any other construction would savor of unreasonable strictness.
The conclusion, then, upon this point, is, — 1. That the party injured may have his redress against the party in fault, perhaps, but clearly not against these defendants, who had nothing to do in that transaction -r — 2. That he may, after the road is laid open for travel, under the statute of 1845, when he had no notice of the opening of the road for travel, apply for a re-assessment of damages, — or, under the Revised Statutes, chap. 20, sec. 26, may apply to the county court for a commission-, to revise the whole proceedings.
Judgment affirmed.
