Patchin v. Doolittle

• Decision Date: 01 February 1831
• Citation: 3 Vt. 457
• Parties: LYMAN PATCHIN v. ISAAC DOOLITTLE et al
• Court: Vermont Supreme Court

3 Vt. 457

LYMAN PATCHIN v. ISAAC DOOLITTLE et al

Supreme Court of Vermont, Bennington

February, 1831

This was an action of trespass, for breaking and entering the plaintiff's close in Bennington, treading down the grass and injuring the soil. The defendants pleaded in bar an application to the select men to lay out a public highway their refusal; an application to the road commissioners, who also refused, till the petitioners had given a bond to the town, securing them against any expense in making the road that this bond was given, and the road laid out three rods wide, and the survey regularly recorded, with the order of the road commissioners, that the road be made and opened within one year, from the time of laying out and establishing the same; and that the defendants, as servants to the petitioners, and by their command, entered upon that part of the plaintiff's close, which was within the survey of said road, took down the fence and made the road, doing no unnecessary damage, & c.; which was the same trespass complained of, & c. To this plea the plaintiff demurred. The county court rendered judgement, that the plea was sufficient. To this decision the plaintiff excepted, and the cause was sent to this Court for a hearing upon the same question.

Bennett and Aikens, for the plaintiff, and Isham and Smith, for the defendants.

OPINION

HUTCHINSON, C. J.

In the argument of the demurrer to this plea, which is the defendants' third plea, no question is made but that this road was regularly laid, and liable to be opened, at some time, by the select men of the town. Yet it is objected, that no persons had a right to enter the plaintiff's inclosure and make the road, till the same was opened by the select men, in the way pointed out by statute; to wit, by their causing a certificate, that it is thus opened, to be recorded in the town clerk's office. We think this objection not well founded. It cannot be possible, that the legislature should have intended that this certificate of the select men should operate as notice to the select men themselves, when they might commence making a road; nor that it should be notice to the owners of land to prepare their fences, that the road might be made and travelled, without injury to the crops. It could be of no use to the select men, who must know their own intended movements, without such a certificate; and must know them before they could make the certificate. It could be of no use to the land owners, unless a time were given them to arrange the fences of their inclosures, after the certificate is recorded. This is not required by the statute; but the time of the lodging the certificate for record is to be considered the time of opening the road, for every purpose. The legislature must have intended other and more valuable objects by this provision. When the select men lay out a public highway, and there is an application for damages, not allowed by the select men, this application must be made within sixty days from the recording of this certificate. Again, this record of the certificate of the select men is the annunciation to travellers, that they may now travel upon this road, as they might upon other public roads, with the same exception of finding a road upon which they can travel, and with the same security for damages, if they sustain an injury through want of repairs. These objects are both important and necessary. Both, and more especially the last, imply, that the road is made ready for travel, before the certificate is made and recorded. It now may be, and always should be, so recorded, before an application is made for higher damages, than those allowed by the select men. There is no averment in this plea that such a certificate was made and recorded. There need be none, to justify the making of the road, ready to be opened and travelled. The duty of the select men must be a practical duty. Upon this construction, it is so. A road is laid out and a time fixed, in some cases by law, and in some by the order of the commissioners, within...