Myers v. Town of Pownal

| Vt. | Feb 15, 1844

The opinion of the court was delivered by

Williams, Ch. J.

It is not a matter of course to grant a writ of certiorari, although 'there may be error in the proceedings of the inferior tribunal, and it was refused in a case in Windsor county, although the court thought the magistrate might have mistaken the law, as no injustice was done. The court should be cautious in reviewing the proceedings of an inferior magistrate, and not be over-wise, or hypercritical.

In the exercise of that discretion, which we always should exercise in cases of this kind, we cannot overlook the consideration that no objection was taken to the appointment of the committee. It would have been a fatal objection to such appointment, if the petition was preferred too late. Nor can we disregard the fact that no injustice'has been done, inasmuch as Mr. Myers has only had the benefit of a second appraisal, which it was intended by the statute he should have. "We are, moreover, of opinion that no error intervened in the proceedings of the county court.

It appears the road in question was laid and established by the county court at their June term, 1840, and the north half of the road was ordered to be made and opened by the 13th of June, 1841, and the south half in six months thereafter. Their proceedings, so far, were before the Revised Statutes came into operation. The road was not completed, or opened, by the time ordered; and, on petition of the selectmen, at the. June term of the county court in 1841, the time for making the road was extended four months from the rising of the court. The court rose the 11th of June, 1841. The petition of Myers for a new assessment of the damages was not prayed out and served within sixty days from the time fixed by the court for opening and completing the road, but within sixty days from the time the town commenced working the road. There is certainly a difference between the time when a road is ordered to be laid open for work, and when, in point of fact, it is opened. The time when a road is ordered to be completed may be extended from time to time, and it may in fact be discontinued; of which the owner of the land, may not be apprised. He sustains no injury, uritil he in fact is compelled to remove his fences, &c., or the selectmen commence working. The road is not in point of fact laid open to be worked, until there is the act, either of the owner, or the selectmen, or both, manifesting that the work is commenced.

It appears to us, therefore, that the county court took a correct view of the statute, in saying that the sixty days limitation should commence from the time that the road was in fact laid open to be worked, and not from the time when it was ordered to be opened. On reference to the 16th section of the statute, in .relation-to roads laid by selectmen, we find a similar provision as to procuring a committee to assess damages, and the same limitation of “ sixty days after the highway shall be opened to be worked.” This must refer to the time when they in fact commence their labor, as no other time is to be fixed for opening the road to be worked. Although there are plausible reasons for a different construction of the statute, under which these proceedings are had, yet we think the county court were right in their Views. At any rate, we do not think proper to grant the certiorari to quash their proceedings. The petition for a certiorari will therefore be dismissed.