61 Vt. 449 | Vt. | 1889
The opinion of the court was delivered by
This petition was brought to this court at the February Term for Windham County, 1884, praying for the appointment of a committee to establish the divisional line between the town parties under R. L. ss. 2755 and 2756.
The petition sets forth the taking of all the necessary preliminary steps on the part of the petitioner, in accordance with the provisions of said sections, that the divisional line Í3 in controversy, that the petitioner’s selectmen have been instructed by a vote in town meeting to cause said divisional line to be located ; that they have given ten days notice in writing to the selectmen of Glastenbury requesting them to meet them at the time and place therein named to agree upon said divisional line; that pursuant to said notice their selectmen have met.the selectmen of Glastenbury, but that said divisional line has not thus been agreed upon ; whereupon they bring their petition. The prayer of the petition was granted by the appointment of such a committee, who attended to all the duties of their appointment, and made their report to this court at the February Term, 1887.
It is now urged as one of the grounds of objection to the acceptance of this report, that it does not appear therein that dhe petitioner has taken the necessary preliminary steps prescribed by the statutes and which the petition alleges to have been taken. But the very appointment of the committee, which was a granting of the prayer of the petition, was a final adjudication upon all the facts therein alleged and which were necessary to be established in order to entitle the petitioner to the relief prayed for. If any of these facts were in dispute, manifestly issue should have been joined on them at the preliminary hearing. It would now be conclusively presumed that all the -allegations of the petitioner were either admitted or proved, so fhat the court acquired jurisdiction. The rule is that “in cases of courts of general jurisdiction, the intendment of law will be ¡that they liave jurisdiction until the contrary appear.” Barrett v. Crane et al., 16 Vt. 254.
It would seem to be not only superfluous but improper for the committee to embody the recital of such facts in their report, as not being within their own personal knowledge nor upon ■which they are required to report, and of which their very ¡appointment, as above indicated, is sufficient evidence.
The duties of' the committee are defined by s. 2757. They are to be sworn, and after giving twenty days notice of the time .-and place of hearing to the selectmen of 'the several towns, and posting such notice in two public places in each town, are to bear all parties interested, and establish such line, and make ¡report to the next term of the Supreme Court. The case shows all these duties to have been performed, except that it does not .appear by the report that the committee were sworn, and this is urged as one of the reasons why the report should not be •accepted. It is not claimed that they were not sworn as matter ■of fact, but only that the report should show that they were. In Putnam v. Sutton, 8 Vt. 396, this court decided in the case of an auditor, that the fact of his having been sworn need not •appear in the report, and it was even said that this would not be
The committee have clearly performed the duty imposed upon them by statute in fixing and establishing the line in dispute. They have heard both parties, their counsel and witnesses, andi as a result of such hearing and their own personal examination qí the premises have made up their minds as to the true location of the line, and so establish it. This is just what the law contemplates, and it is hard to see how they could have followed more precisely both its letter and its spirit.
There was admitted at the hearing against the objection of" the petitionee the testimony of two witnesses as to the declarations of persons deceased relating to a certain tradition concern-, ing the location of the line in dispute; certain maps and^histories were also admitted for the same purpose. But the eommitteeexpressly state in their report that they “ examined the lines as-claimed by both towns, and arrived at the conclusion as before stated, and have established the line as stated in our report, entirely upon evidence other than the evidence objected to as-above set forth. And the evidence so admitted subject to objection was not considered by us in arriving at our decision.”
This assurance renders it unnecessary for us to consider the-question of the admissibility of this evidence.
The judgment is that the report be accepted, the line-reported by the committee as the divisional line between the towns established as such divisional line, and the petitioner to« recover its costs.
