Selectmen of Glover v. McGaffey

55 Vt. 171 | Vt. | 1882

The opinion of the court was delivered by

Taft, J.

The statute of 1869 gave the committee appointed by the county judges power to determine and direct what “ alterations, repairs, or additions,” were required to make the dam sufficient and safé. The committee ordered the defendant to raise his head-gate and cease using it. This practically lowered his dam and prevented his securing the amount of water the pond had theretofore held. The effect was the same as the removal of the upper part of the dam. Was this such an order as section 2 of the act of 1869 contemplates ? such an one as the committee had the right to make ? We think not. Raising the gate and keeping it up was not an alteration, repair of, or addition to, the dam, such as we think the legislature had in mind in passing the statute, or that is fairly within the meaning of the words of it. The fair import of the words is, a change in some way of the material structure of the dam, something that will make the dam stronger and not prevent the owner from using it, to secure the usual quantity of water in his pond. The order made was equivalent to one directing the removal of the dam, or a portion of it. That such an order was not contemplated in the first instance we think is evident from the words of the statute ; and we are confirmed in this opinion by the fact that section 3 of the act provides that after an order is made under section 2, and- the owner of the dam refuses or neglects to make the “ alterations, repairs, or additions ” ordered by the committee, the committee are then given the power to remove the dam, or such parts thereof as they may deem necessary to protect the property on the stream below, clearly implying that this was not within the power of the committee in the first instance. This view of the order renders it unnecessary to pass upon the constitutional and other questions in the case, as the act of 1869 is not now in force; for, if not repealed by the act of 1876, it has been since, by the passage of the Revised Laws, among which the provisions of the former act are not included.

The proforma decree of the court of chancery is reversed and cause remanded, with a mandate that the bill be dismissed.