Page v. Town Of Newbury.

• Decision Date: 05 October 1943
• Docket Number: No. 290.,290.
• Citation: 34 A.2d 218
• Court: Vermont Supreme Court
• Parties: PAGE v. TOWN OF NEWBURY.

34 A.2d 218

PAGE

v.TOWN OF NEWBURY.

No. 290.

Supreme Court of Vermont.

Oct. 5, 1943.

Exceptions from Caledonia County Court; Samuel H. Blackmer, Presiding Judge.

Trespass on the freehold by William H. Page against Town of Newbury. Defendant's motion for directed verdict was overruled. Verdict and judgment for plaintiff, and defendant brings exceptions.

Reversed and remanded.

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

Conant & Parker, of St. Johnsbury, and William S. Burrage, of Montpelier, for plaintiff.

James B. Campbell, of St. Johnsbury, for defendant.

STURTEVANT, Justice.

This is an action of trespass on the freehold brought before the Caledonia County court. The defendant pleaded a parole license to justify the entry. The plaintiff had a verdict and judgment below and the case is here upon the defendant's exceptions.

From the evidence viewed in the light most favorable to the plaintiff the jury could reasonably find the following facts.

At all times here material the plaintiff was the owner of a tract of land containing about 150 acres and located in the town of Newbury in Orange County. A part of this tract, known as the Butson pasture, bordered the so-called swamp road on the west. A brook formerly ran out of the pasture, crossed the road, turned and again crossed the road and came back into the pasture. This made it necessary for the town to maintain two bridges over the brook, which bridges were about 30 rods apart. Sometime in the year 1934 the defendant town, acting through its duly authorized agent, asked the plaintiff for permission to change the course of the brook so as to run it across the pasture, thus doing away with the need of the two bridges. The plaintiff gave the town permission to do this upon the following terms: The town was to furnish $30.50 to pay taxes then due on the land, deliver to the plaintiff's residence in Groton what wood it cut in changing the course of the stream, replace fences torn down by it, and build stone abutments and place stringers thereon for a bridge across the new bed of the brook so that the plaintiff, by finishing the bridge, might continue to have access to his land as before. The town accepted these terms but performed none of them. The defendant entered upon the land, changed the course of the brook, moved some of the road fence back several feet, changed the width of the traveled part of the highway, for a distance of about 35 rods and adjacent to the pasture, from 12 feet to 24 feet. In connection with that project the defendant cut several maple trees. Several of the trees cut were used by the defendant in the construction of a dam in the pasture. The ditch which formed the new course of the brook left the plaintiff without a practicable and reasonable way of access to a considerable portion of his land. The fence built in the new location along the road was of poor quality.

We first consider the defendant's fifth and sixth exceptions which may be stated briefly as follows: The court below is without jurisdiction of the subject-matter because this is a local action for trespass on lands in Orange County and must be brought there. Therefore the Caledonia County court was without power and authority to enter judgment in this case.

In very early times, under the common law, all actions were local. 27 R.C.L. p. 778, § 2. Later actions were classified as local and transitory. If the cause of action could have arisen in any place whatsoever, it was said to be transitory, and an action thereon might be brought in any county wherein the defendant was found. But, if the cause of action could have arisen in one place only, it was local and suit could be brought only where the cause arose. 27 R.C.L. p. 786, § 9; McLeod v. Connecticut & P. R. Co., 58 Vt. 727, 733, 734, 6 A. 648.

However, we are not concerned here with what may have been the common law rule as to the trial of local actions because, in this respect, that rule has been superseded by our statutes, regulating the places where actions shall be brought, and none are local unless made so by statute. University of Vermont v. Joslyn, 21 Vt. 52, 59; June and wife v. Conant, 17 Vt. 656, 658. General jurisdiction of our county courts over civil actions is conferred by P.L. 1366 and so far as here material is as follows: “Each county court within the several counties shall have original and exclusive jurisdiction of all original civil actions, except those made cognizable by a justice or municipal court, ***.”

The provisions of P.L. 1565 here material are: “Actions before the county court shall be brought in the county in which one of the parties resides, if either resides in the state; otherwise the writ, on motion, shall abate; *** but *** actions in tort for trespass on the freehold shall be brought in the county in which the lands lie.”

The case at bar is a local action because it is made so by the provisions of this statute and not because it is local in character in that the trespass could have taken place only on the lands in question. These statutory provisions make this kind of action local, only when it is brought to the county court. An action of this kind brought before a justice of the peace is not local because it is not made so by statute. June v. Conant, 17 Vt. 656. The writ in such case must be made returnable within the town where one of the parties resides, P.L. 1571, and this is true even though the land lies in another county. June v. Conant, 17 Vt. at pages 657, 658.

An action of replevin, brought under the provisions of P.L. 1910, is of a transitory character because it is for the recovery of personal property, Collamer v. Page and Fifield, 35 Vt. 387, 390, and yet, as to the county where the goods are detained, it is made local by the following provisions of that statute...