Trudeau v. Town of Sheldon

62 Vt. 198 | Vt. | 1890

The opinion of the court was delivered by

Boyoe, Ch. J.

The petition addressed to the selectmen was-to make or cause to be made a re-survey of the highway leading-from the west end of the bridge across Black Creek in the village of Sheldon, westerly to the highway leading from Fairfield to Highgate. The selectmen proceeded to re-survey the highway described in said petition, and from the survey made by them an appeal was taken to the County Court, commissioners were appointed, and the report made by them is now before us for consideration.

The proceeding was instituted under E. L. s. 2920, which pro-, vides that where the survey of a highway has not been properly recorded, or the record preserved, or if its terminations or boundaries cannot be ascertained, the selectmen may re-survey the-same and make a record thereof in the town clerk’s office.

It appears from the report of the commissioners and the plan* of August 28 therein referred to, that the north line of the highway established by the County Court under the report passed through a store owned by Draper & Bush, cutting off eleven feet of the front end of the same. Draper & Bush claimed the right to appear before the commissioners and be heard upon the question of the location of said line; and they were allowed, against the objection and exception of ' the petitioners, to appear by counsel upon the hearing before the commissioners, and in the-County Court, and they were allowed exceptions to the judgment rendered. The defendant has in this court moved to dismiss the exceptions upon the ground that Draper & Bush are not parties-to the cause and that there is no legal ground on which they can be made parties.

By No. 15 of tlie acts of 1886 the right to petition the County Court from the findings and award of selectmen acting under B. L. s. 2920 was allowed to any person owning or interested in lands through which said highway is re-surveyed; :and the same proceedings are to be had as is provided in chap. 140 of the B. L. in case of laying out or altering any highway. The right of any person who is interested in land over which a highway is laid out or altered to appear before selectmen or commissioners, is fully secured by chap. 140 of the It. L. Draper & Bush had such an interest in the subject matter as .gave them a right to appear, and their exceptions were properly •allowed by the County Court.

The right given td selectmen by sec. 2920, B. L., to re-survey •a highway is only given in cases where the survey of a highway has not been properly recorded or the record preserved ; so the fact that a survey has been made must appear, to give the selectmen jurisdiction to make a re-survey. The commissioners have reported that said highway was not surveyed or laid out by the committee appointed in 1802 to lay out and survey a county road from the court house in St. Albans to the center of Bichf ord, and that they are unable to find that said highway has ever been surveyed.

The word “ re-survey ” is defined to be “ to survey again; ” so that there must have been a previous survey to warrant what is defined as a re-survey; and there having been none made, the selectmen and commissioners had no power to make one. It is a matter controlled by statute law and the statute is clear and unambiguous. If the court had any discretion in the mattery we should not exercise it in the establishment of the line claimed, when it is manifest that it would work such injury to Draper & Bush; and the selectmen and commissioners have, by their action, decided that neither the public good or necessities ■of individuals requires it.

The judgment of the County Court is reversed, and petition dismissed.