Ellis v. Cannon, 295.

• Decision Date: 02 May 1944
• Docket Number: No. 295.,295.
• Citation: 37 A.2d 377
• Court: Vermont Supreme Court
• Parties: ELLIS et al. v. CANNON et al.

37 A.2d 377

ELLIS et al.

v.CANNON et al.

No. 295.

Supreme Court of Vermont.

May 2, 1944.

Exceptions from Court of Chancery, Caledonia County; Charles B. Adams, Chancellor.

Action by Theodore M. Ellis and Gladys Ellis against James A. Cannon and others as trustees and village manager to enjoin the defendants from maintaining a public nuisance in the form of a highway in dis-repair and to compel the defendants to make the highway safe for travel. There was a decree for plaintiffs, and the defendants bring exceptions.

Decree reversed and bill of complaint dismissed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Witters & Longmoore, of St. Johnsbury, for plaintiffs.

Arthur L. Graves, of St. Johnsbury, for defendants.

SHERBURNE, Justice.

This is a suit in equity in which the plaintiffs, as owners of land with a dwelling house thereon and abutting upon the westerly side of an alleged public highway or street, known as Fifth Avenue, in the village of St. Johnsbury, allege that on June 21, 1942, the easterly side of said street opposite the plaintiffs' premises was washed out for a long distance and to a great depth and far into the traveled portion thereof, and that the retaining wall on the easterly side of the street which had supported the road surface had been displaced and weakened by the washout, whereby the street became unsafe and dangerous for travel. They further allege that the defendants, as trustees and village manager respectively of the village, although requested, have wilfully and arbitrarily refused and neglected to replace and repair the retaining wall and fill the washout, and make the street passable and safe for travel; that the washout has greatly depreciated the value of the plaintiffs' premises and caused them great damage; and that the washout and dangerous condition have become a public nuisance. They seek a mandatory injunction restraining the defendants from maintaining such public nuisance, and ordering the defendants to forthwith fill the washout, replace and repair the retaining wall, and put the street into a safe and proper condition for travel. The defendants demurred in their answer for reasons later herein mentioned. The demurrer was seasonably brought on for hearing, when it was overruled subject to exceptions, and the benefit of the demurrer was reserved and saved to the defendants until the final hearing. The cause was then heard upon the merits. The principal issue of fact was whether Fifth Avenue, which had never been laid out as a highway, had become a highway by adoption. The chancellor found that it had, and that the condition of the street resulting from the washout constitutes a public nuisance. The decree orders the defendants to abate the condition found to be a public nuisance by repairing said condition in such manner as to make the street safe for public travel, and to thereafter maintain the street in good and sufficient repair and keep the same safe for public travel. The cause comes here upon defendants' exceptions.

Here, as in Smythe v. Central Vermont R. Co., 88 Vt. 59, 79, 90 A. 901, 909, as a part of the final decree the defendants' demurrer was overruled. As there said: “This had already been done, and, although the benefit of the demurrer was reserved until the final hearing, that action did not formally reinstate the demurrer, but only reserved to the defendant the right thereafter to raise and insist upon all the questions made under the demurrer. In such circumstances the final decree is upon the whole case as finally made up, and it is a technical error, which we note in the interest of good practice, to consider the demurrer separately and overrule it again.”

In their demurrer the defendants insist that the plaintiffs have not stated in their bill of complaint any case justifying the intervention of a court of equity, and among other things assert that the plaintiffs have a full and adequate remedy at law by virtue of the provisions of Chapter 205 of the Public Laws relative to county road commissioners and relative to the indictment of a town for neglect to repair a highway, and by virtue of mandamus proceedings, if they are entitled to any remedy or relief whatsoever.

Towns and other municipal corporations created for governmental purposes are not liable to a private action for neglect to keep their highways in repair, unless such liability is expressly imposed by statute. Moody v. Town of Bristol, 71 Vt. 473, 476, 45 A. 1038; Daniels v. Hathaway, 65 Vt. 247, 254, 26 A. 970, 21 L.R.A. 377; Bates v. Village of Rutland, 62 Vt. 178, 181, 20 A. 278, 9 L.R.A. 363, 22 Am. St.Rep. 95; Parker v. Village of Rutland, 56 Vt. 224; Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123, 52 Am.Dec. 84. If a town or other municipality is not liable to a private action for such neglect, then its agents to whom is intrusted the care of its highways are equally not liable to a private action. Daniels v. Hathaway, supra.

The village of St. Johnsbury derives its powers from No. 179 of the Acts of 1927. In section 2 it is granted authority to exercise all powers relating to municipal affairs. By section 3 it has authority (a) to levy, assess and collect taxes, in order to carry out its powers, (e) to lay out streets and highways. By section 8 (f) the trustees shall be the governing board of the village. By section 14(a): “The trustees shall have the power to direct the expenditure of such portion, not being less than three fourths, of the highway taxes assessed upon the polls and ratable estate within the village limits, as the Selectmen of the Town of St. Johnsbury may assign to them; and may have the same power to lay out, alter, maintain and discontinue any street, lane or walk, within the village limits, and appraise and settle the damages therefor, as is given by law to the Selectmen of towns, causing their proceedings to be recorded in the office of the St. Johnsbury Town Clerk; Provided, that any person aggrieved by these proceedings shall have the same opportunity for applying to the courts for redress, as is or may be allowed to those aggrieved with the proceedings of Selectmen in similar cases.” Under section 17 it has a village manager, who has the powers and duties specified in Chapter 149 of the Public Laws. To the extent that powers conferred upon the selectmen by general law are given to its trustees they may exercise the same within the village limits. P.L. 3646. The trustees and village manager shall have like power to repair highways under their care, which towns and town officers have. P.L. 4907. And the laws applicable to the inhabitants and officers of towns shall be applicable to the inhabitants and similar officers of the village. P.L. 41.

So far as the remedies by application to the county road commissioners or by indictment, mentioned in Chapter 205 of the Public Laws, are concerned, only towns are mentioned, which by P.L. 41 shall include cities. It is clear that these remedies only apply against towns and cities, except possibly...