Chilson C. Fairbanks v. Town of Rockingham

• Decision Date: 25 February 1903
• Citation: 54 A. 186,75 Vt. 221
• Parties: CHILSON C. FAIRBANKS, et al. v. TOWN OF ROCKINGHAM
• Court: Vermont Supreme Court

54 A. 186

75 Vt. 221

CHILSON C. FAIRBANKS, et al. v. TOWN OF ROCKINGHAM

Supreme Court of Vermont

February 25, 1903

January Term, 1903.

APPEAL IN CHANCERY. Heard on the report of a special master and the defendant's exception thereto, at the September Term 1902, Windham County, Tyler, Chancellor. Defendant's exception overruled, and decree for certain of the orators for the damages caused by the change of grade in the highway in question in excess of three feet. The orators appealed. The defendant appealed on the question of the master's jurisdiction.

Decree affirmed, and cause remanded.

H D. Ryder and Clarke C. Fitts for the orators.

Present MUNSON, START, WATSON, STAFFORD and HASELTON, JJ.

OPINION

HASELTON

This case has once before been in this Court, and the jurisdiction of the Court of Chancery, arising from special facts, was then determined. See this case, 73 Vt 124, 50 A. 802.

The only question now before the Court is as to the construction of the phrase "such alteration" as used in V. S. 3358, relating to the grading of highways. That section and the preceding one read as follows:

"Sec. 3357. A selectman or road commissioner shall not alter a highway, by cutting down or raising the road-bed in front of a dwelling house or other building standing upon the line of said highway, more than three feet, without first giving notice to the owners thereof, of a time when the selectmen will examine the premises, hear them upon the question of making such alteration and damages by reason of such alteration, at which time the selectmen shall attend and hear such owners, if they desire to be heard.

Sec. 3358. If the selectmen are of opinion that the public good, or the necessity or convenience of individuals requires that such road-bed be altered by lowering or raising the same more than three feet, they may order such alteration to be made, and if they are of opinion that such owners will sustain damage by reason of such alteration they shall determine and award the amount thereof to the owners respectively, taking into account, by way of offset thereto, such special benefit, if any, to such owners as shall accrue to them by reason of such alteration."

It may be observed that an alteration of a highway implies, as a general rule, a change in the course or width of the highway. A mere change in the grade of the road-bed is not ordinarily regarded as an alteration. Harrison v. Milwaukee, 51 Wis. 645; Bigelow v. Worcester, 169 Mass. 390, 48 N.E. 1; Callender v. Marsh, 18 Mass. 418. This rule seems to have been recognized in this State in Felch v. Gilman, 22 Vt. 38, and in Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84.

In 1881, the case of Penniman v. Town of St Johnsbury, 54 Vt. 306, was before this Court. The trustees of the village of St. Johnsbury had, to the extent of about three feet and six inches, raised the...