West River Bridge Co. v. Dix

| Vt. | Feb 15, 1844

Per Curiam.

This is a motion for a writ of certiorari, which the court, by favor, and in order to enable the plaintiffs to place their case in the most available shape for carrying it by writ of error to the supreme court of the United States, have allowed, reserving the hearing and decision of all questions, arising in the case, untiL the coming in of the record of the county court.

This mode of proceeding will doubtless give the plaintiffs one advantage, to which they would not otherwise be entitled; that is, if now, upon inspection of the record and proceedings of the county court, error appears, the court must quash the proceedings,— whereas, on the application in the first instance, the court have a discretion whether to grant the writ, or not, even in a case where formal error has intervened. Hence, if the error is not one affecting the substantial justice of the case, the writ has uniformly been denied. But, the writ having been granted in this case, and the record being now before the court, it must be decided whether error has intervened, or not.

The questions in regard to notice to the corporation of the assessment of damages, and whether the public good required a free road, rested solely in the discretion of the county court. The latter was one of Net merely, and can no more be revised by the supreme court than can the amount of damages assessed for the franchise.

Upon the main question, whether the county court could take the franchise, we think the case comes within that of Armington v. Barnet et al., 15 Vt. 745. Most of the arguments urged here would have applied equally well to that case. And the attempt to distinguish the two cases in principle, although ingenious, is a failure.

1. That was not a new road, except as it became new by being made ajfree road. 2. That was equally a franchise with this. 3. That franchise was no more inherent in the land over which it extended, than in this case. The turnpike corporation owned no land, whereas this corporation owned two acres, which was taken ; so that, in that respect, the case was most favorable to the turnpike company. 4. The legislature bad expressed no more assent to the taking of the franchise in that case, than in this. There was a conditional assent in all similar cases, — that is, if the public good required it to be taken. 5. The question of the necessity of taking the franchise in that particular case was Before this court in that case; in this case that question was before the county court; — but, having been decided by the proper tribunal, it is the same as if it had been determined by this court. 6. The terms of the statute extend equally to this corporation as to a turnpike corporation. The words are, “ any easement or franchise of any turnpike or other corporation,” — intending, doubtless, to reach the very case of bridge corporations. 7. The fact that' the corporation owns a few acres of land, more or less, can make no difference.

It is therefore adjudged that there is no error shown to the court or apparent upon the- record and proceedings of the county court.