State v. Catlin

| Vt. | Jan 15, 1831

After argument, ihe opinion of the Court was delivered by

Williams, J.

The principal question which has been made in this case has been considered and decided in the case of Abbott vs. E. & T. Mills.^* It has been decided, that land may be set apart for the public use by the owner or proprietor without deed; that it is not necessary that the lands so set apart should have been used for any particular period of time to establish the rightof the public or of individuals to have itso continued,and that the original proprietor or owner cannot recover the lands once dedicated by him. for a public common orsquare,when individuals have been induced to purchase lands bordering thereon, in the belief, and with the expectation, held out that it was so to remain.

The case under consideration affords a striking illustration of the propriety and justice of the principles thus established. The original owner of this college green could not recover this land without seriously prejudicing the interest of individuals, nor without the most manifest injustice on his part.. The declarations of Pearl, before he sold to the respondent, or those under whom he claims, were admissible in evidence, particularly in connection with his acts and those of others of which he had knowledge. Indeed, without those declarations it might have been doubtful whether he intended a public dedication or not.

The second position which has been taken in the argument, viz., that the court should have advised the jury that there was not sufficient evidence of a dedication to the public to support.the indictment, is certainly unsound. The evidence detailed in the case was abundantly sufficient for the purpose; and, if believed, (and the jury were alone to determine whether the witnesses were entitled to credit,) establishes the fact, most clearly, that this common or square had been dedicated to the public, and could not be disposed of by the owner for any other use.

It would be a sufficient answer to the third ground taken in the argument, that the court were not reminded of their omission to charge upon that part of the case until after the jury had returned their verdict. If this was an omission, the counsel for the respondent should have brought it to - the notice of the’ court before the jury retired, so that they could have supplied the omission if the case required it. But we are satisfied from the case that there was no omission, nor any neglect to call the attention of the jury to any thing material for the respondent.

The jury must have found, under the direction of the court, that the college square was thrown out to the public for the public use as a common thoroughfare. It-was not material by what name it was called, or what originally induced the owner thus to dedicate it, or whether it was primarily and principally intended for the benefit and advantage of the college. If it was given to be and remain an open space or square, by whatever name it may have been denominated, (and the evidence tended clearly to establish this fact,) any obstruction thereon, inconsistent with public use, would be a nuisance, and would subject the person pía-cing it there to an indictment. Therefore,

Adams, for state. Bailey & Marsh, for respondent.

Judgement must be rendered on the verdict.

* See preceding case.