Boyden v. Vill. of Brattleboro

• Decision Date: 26 May 1893
• Citation: 27 A. 164,65 Vt. 504
• Parties: BOYDEN et al. v. VILLAGE OF BRATTLEBORO.
• Court: Vermont Supreme Court

27 A. 164

65 Vt. 504

BOYDEN et al.

v. VILLAGE OF BRATTLEBORO.

Supreme Court of Vermont. Windham.

May 26, 1893.

Exceptions from Windham county court; Rowell, Judge.

Appeal By Boyden and Herrick to the county court from a sewer assessment by the bailiffs of the village of Brattleboro. Heard upon the report of commissioners. Judgment for the petitioners. The petitionee excepts. Affirmed.

In the spring of 1881 several persons, of whom William H. Esterbrooks was one, constructed a sewer along Elliott street in the village of Brattleboro for the purpose of affording drainage to the lands upon that street into the Connecticut river. Originally this sewer was entered only by those persons who had borne the expense of its construction but subsequently other landowners were permitted to enter it upon the payment of a portion of the expense of its construction; and articles of association were framed defining the rights of the several proprietors in this sewer, from which the same came to be called the "Association Sewer." October 7, 1881, the proprietors of the Association sewer, being desirous of relieving themselves from the future expense of maintaining the same, conveyed the sewer to the village of Brattleboro, without compensation, and the village accepted the sewer, and agreed to maintain it in the future. In 1886 the bailiffs of the village of Brattleboro constructed a sewer known as "Elliott, Frost and Flat Street Sewer," which drained a considerable territory in the village, and which connected with and was discharged into the. river through the Association sewer. In constructing the Elliott Frost, and Flat street sewer and connecting it with the Association sewer it became necessary to lower a portion of the latter. The bailiffs of the village claimed that by connecting the Elliott, Frost, and Flat street sewer with the Association sewer the two became a part of one system, and that the landowners along the Association sewer might be assessed towards the expense of lowering that sewer, as aforesaid, and also for the expense of constructing the Elliott Frost, and Flat street sewer over and above the amounts derived from assessments. The petitioners own certain property upon Elliott street, through which the Association sewer had been originally constructed, and derived their title to the same from the aforesaid William H. Esterbrooks, one of the original proprietors of that sewer. At the time when the original sewer was constructed there was standing upon this land a building, which continued to stand there down to the time of the controversy. After the petitioners acquired their title to the land, and before the laying of this assessment, they constructed upon the land a brick building, and from this laid a sewer to and connected with the sewer which had always run from the wood building into the Association sewer. It was for the benefit derived by the petitioners from the drainage afforded this new brick building that the bailiffs attempted to lay the assessment.

Haskins & Stoddard, for petitioner.

Waterman, Martin & Hitt, for petitionee.

ROSS, C. J. The bailiffs of the defendant assessed the petitioners for the construction of sewers in the village of Brattleboro. The petitioners were dissatisfied with that assessment, and brought their petition to the county court to have that assessment corrected, under section 17 of the charter of the village, which reads: "When any person shall be dissatisfied with the decision of the bailiffs in the award of damage for land taken for a sewer or drain, or in any assessment...