44 Vt. 239 | Vt. | 1872
The opinion of the court was delivered by
This is a petition for certiorari, claiming error in the county court in awarding damages to the petitionee in a proceeding to establish a pent road through his premises in the town of Fairfield. The petitioner claims that said Morey is not entitled to damages, for the reason that the land taken for said highway had been dedicated by his grantor, and accepted by the public, and occupied publicly, as a highway, since March, 1864.
On inspection of the record, which has been certified into this court, the fact distinctly appears by the commissioners’ report, that in March, 1864, one Merritt Mitchell, then owner of the premises, and under whom Morey claims title, applied to the selectmen of Fairfield to discontinue a then “ open highway, leading from Fitzgerald’s line westerly to the main highway leading from Fairfield Center to Bakersfield.” That said open highway passed over these premises. “ And to induce the selectmen to do so, he promised to give them a pent road further south, between the same points, aud on the same premises, which said Mitchell then pointed out to the selectmen.”
This is an unequivocal dedication so far as the owner of the land is concerned, if accepted and used by the public. “ The vital principle of dedication is the intention to dedicate' — the animus dedicandi; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has
The same doctrine was very distinctly stated by Kellogg, J., in Fulsom v. Underhill, 36 Vt., 580. The record further shows that “ about March 1st, 1864, and while said Mitchell owned the land, gates were erected on the line pointed out by said Mitchell for a pent road, but it did not appear by whom, and the town also constructed a bridge over the creek on that line, and the public have passed over the same at pleasure since that time.”
It further appears that the former open road has been fenced up, and included within the Mitchell farm, now owned by said Morey. The facts that appear by the record, stated consecutively, would seem to bo that, in March, 1864, Morey’s grantor applied to the selectmen of Fairfield to vary the location of a highway across his farm; and, as an inducement, offered to give the land for the new location in exchange for the other. That the town of Fairfield accepted that offer, and proceeded immediately to build a bridge across the creek in the new and substituted location, allowed the former road to be closed up, and the public travel diverted into the substituted way. That Mitchell and his grantees occupied and used the old road thus exchanged for the ° new, for six years or more before any questions arose in the premises.
These facts constituted, beyond question, a dedication of the land by the owner of the fee, and an acceptance by the town of Fairfield. The fact that the town allowed the old road to be shut up, and provided the new road, building the bridge across the creek, and making it a necessary substitute and the only avenue for public travel, is an express'assent to its dedication.
In Hobbs v. Lowell, 19 Pick., 405, it was held that by the forbearance of the town to prosecute persons who had shut up an old road, and substituted a new one, and, by sotting up a guide-post on the new road, the town had expressed assent to its dedication.
And in Crocket v. Boston, 5 Cush., 182, it was held that when a party offers land for a street free of charge, the offer of dedica
II. It is claimed that the county court, by accepting the report and allowing damages, have found the fact that there was not a dedication of the land for the new road.
The county court have adjudged that the facts found by the commissioners do not constitute a dedication and acceptance. And in that we think there was error. The commissioners have detailed the specific facts, and submitted to the court whether they constitute a dedication. If the dedication was a matter of inference from lapse of time, acquiescence, or other circumstances, and the commissioners should refer the matter to the court to. make inferences, it might be necessary to recommit the report for more specific finding.
But when, as in this case, the dedication was express, and the acceptance unequivocal, there would seem no need that the report be recommitted.
We think it was error in the county court to allow land damages to the said Morey, and that the writ must issue.
The record having been certified up, the judgment of the county court that the said William H. Morey recover one hundred dollars as land damages, and his cost, of the town of Fairfield, is vacated and set aside ; and the order establishing the road is to stand ; and the town of Fairfield is to recover its costs of the said William H. Morey.
