Hoyt v. Village of North Troy
| Decision Date | 19 November 1918 |
| Citation | 105 A. 33,93 Vt. 8 |
| Parties | WILLIAM HOYT AND MARY HOYT v. VILLAGE OF NORTH TROY |
| Court | Vermont Supreme Court |
May Term, 1918.
ACTION OF TORT, for raising a highway in front of plaintiffs' house more than three feet without first having the damages assessed according to law. Trial by jury at the September Term, 1917, Orleans County, Butler, J., presiding. At the close of plaintiffs' evidence defendant moved for a directed verdict. Verdict directed for the defendant, and judgment thereon. The plaintiffs excepted. The opinion states the case.
Judgment affirmed.
Harry A. Black and Frank S. Rogers for the plaintiffs.
O S. Annis and E. A. Cook for the defendant.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
The plaintiffs seek to recover damages resulting from the action of the defendant in raising the grade of the street in front of their dwelling. The evidence tended to show that the defendant had, from time to time, filled in the street in question until in the aggregate it had been raised more than three feet, and that no proceedings for a hearing and assessment of damages had been had. But it was not shown that this highway had been raised more than three feet at any one time, or at various times pursuant to a definite plan. In these circumstances, no cause of action was established and a verdict was properly ordered for the defendant.
In the absence of some statutory or constitutional provision, a change in the grade of a highway made by municipal authority does not entitle an adjoining proprietor to damages. 37 Cyc. 240; Note to Sheehy v. Kansas City Cable Ry. Co., (Mo.) 4 Am. St. Rep. 401; Penniman v. St. Johnsbury, 54 Vt. 306. The case before us must stand or fall under the provisions of P S. 3878 (G. L. 4457) properly construed. It is to be noticed that the language of this section does not import a general prohibition against a change in grade of more than three feet without notice and hearing, but restrains such action on the part of a selectman or road commissioner--thereby implying with more or less force that it does not apply to the acts of successive officers. It is further to be observed that the prohibition is limited to an "alteration" of the highway by changing the grade. Accordingly, it was held in Fairbanks v. Rockingham, 75 Vt. 221, 54 A 186, and in effect reaffirmed in Collins v. Barre, 91 Vt. 343, 101 A. 43, that a change in the grade of three feet or less is, under the statute, a matter of repairs and not of alteration. In conformity with this view of the law and in accordance with what we regard as the true spirit of the statute, we now hold that...
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