West v. Bancroft

32 Vt. 367 | Vt. | 1859

Pierpoint, J.

We think that in view of the evidence, and the admissions of the parties, as to the location of the highway in the village of St. Johnsbury, there can be no doubt that if the acts complained of in this case were done within four rods east of the western limit of the highway, as used for the last forty years, they were done within the highway, and that the charge of the court on that question was correct.

The only remaining question is as to the right of the public to put a reservoir, or cistern, into the earth, within the limits of the highway, for the purpose of retaining water to be used in sprinkling the streets and extinguishing fires. There is nothing stated in the bill of exceptions tending to show, either from the place where this cistern was put, or the manner of its construction* that it was likely to interfere with the full and perfect use of the highway by the public, or to produce any special injury to the owner of the adjoining land, and the owner of the reversionary right in the highway; but the case stands upon the bare right of the public to do the act under any cirpumstances.

The power of the public over highways is not confined to their use for the sole' purpose of travel. Many things may be done therein for the promotion of the public convenience' and health, such as laying water pipes, constructing drains and sewers, making reservoirs, and many other acts which the public may require ; and when these acts are done by the public authorities in a judicious manner and with proper care, having reference to the rights of adjoining proprietors, and the owners of the fee of the land, if such proprietors are incidentally affected injuriously thereby, or the owner of the fee sustains a technical damage, the law furnishes no remedy therefor.

But in this case it is not necessary to resort to this principle, even to justify the acts of the defendant. It is conceded that this reservoir was built by the defendant as a public officer, having charge of such matters, and in the discharge of his official duty; that the object was to retain water to be used in sprinkling the streets, and for other public purposes. This,.we think, clearly comes within the object and purpose for which the highway was originally laid out.

All those acts which tend to facilitate travel, and add to the ease, comfort and convenience of the traveler, or his beasts, whether it be by cutting down the hills, filling the ravines, paving the roads, erecting watering troughs, or, sprinkling the streets, are acts which it is proper and often necessary for the public to do. Aud in a village containing so numerous and active a population as St. Johnsbury, no other one of these acts, perhaps, would add so much to the comfort of the passers on the highway, as -well as all the inhabitants of such village, as that of sprinkling the streets ; and such act, instead of infringing on the rights of the reversioner, can hardly be said to approach that uncertain line constituting the true boundary between the rights of the public and the owners of the fee in the highway.

The judgment of the county court is affirmed.