Petition of Mattison
| Decision Date | 02 September 1958 |
| Docket Number | No. 171,171 |
| Citation | 120 Vt. 459,144 A.2d 778 |
| Court | Vermont Supreme Court |
| Parties | In re Petition of Lillian W. MATTISON & Gordon Bentley. |
Waldo C. Holden, Bennington, for plaintiff.
James B. Campbell, Manchester, for defendant.
Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.
This is a petition for a writ of prohibition brought to this Court by Lillian W. Mattison and Gordon Bentley, who will hereafter be referred to as the petitioners. The petition prays for a writ to prohibit Charles Taylor, Porter Hulett and Clyde H. Bryant, as selectmen of the town of Manchester, from acting under their report and decision in regard to a certain highway and also directing them to maintain the highway as the law provides. These selectmen will hereafter be referred to as the petitionees.
The parties by agreement filed a stipulation of facts. However, in order to understand certain parts of that, it is necessary to refer and make reference, in addition thereto, to certain pertinent facts set forth in the petition and which are not controverted by the answer of the petitionees.
The petitionees, and selectmen of the town of Manchester, acting upon the petition of three freeholders of that town, after notice and hearing held on September 25, 1957, by their order dated November 20, 1957, altered and changed a section of Town Highway No. 37 situated between the intersection of Town Highways No. 37 and No. 38 and the Manchester-Sandgate division line from a public highway to a trail effective forthwith. The order further provided that signs shall be erected by the town of Manchester at each end of the trail warning users that the town is not liable for the maintenance of said trail, 'that all users thereof pass at their own risk, and that the abutting owners of lands at either end of said trail may erect unlocked gates and bars across said trail at the ends thereof, or at such other places as the Selectmen may hereafter designate in writing and recorded in the office of the Clerk of said Town, pursuant to the Statute in such case made and provided.' This order of the selectmen was received for record in the town clerk's office and recorded on November 23, 1957.
The petitionees filed an answer in which they stated in substance. 1, The petitioners have an adequate remedy at law. 2, The act sought to be prohibited is a legal, full, complete and accomplished judicial act. 3, The petitioners do not allege that they are damaged, injured or otherwise affected by the action taken. 4, The petitioners did not object to the jurisdiction of the selectmen. 5, A writ of prohibition may not issue directing the selectmen to maintain the highway as it is beyond the power or scope of such a writ.
We now turn to the stipulation of facts which states in substance,--1, The selectmen acted in conformity with V.S. 47, §§ 5020, 5021, 5022 and 5023. 2 & 3, The petitioners were personally present at the hearing on September 25 and neither of them objected to the jurisdiction of the selectmen. 4, The highway, a portion of which was made a trail, commences at its intersection with U. S. Route No. 7 in the town of Sunderland, crosses through a portion of the town of Manchester and runs into the town of Sandgate. 5 & 6, The lands of the petitioner, Mattison, are in the town of Manchester and abut partially on that section of the highway which was changed into a trail and partially on a portion of the highway not affected by the order. The lands of the petitioner, Bentley, are located in Sandgate and are accommodated by said highway. 7, Neither of the petitioners nor any other person filed an appeal to the Bennington County Court or to any other court from the order of the selectmen. 8, No signs have been erected by the town of Manchester at each end of said section of said highway warning the users thereof that the town is not liable for the maintenance of said trail and that all users pass at their own risk. 9 & 10, No abutting owner has erected any unlocked bars or gates across said section at either end and the selectmen have not designated in writing and recorded in the office of the town clerk other places where unlocked gates or bars might be erected. 11, In November, 1957, the selectmen of the town of Sandgate similarly altered and made a trail of a portion of said highway located in that town and commencing at the Manchester-Sandgate town line.
The procedure to be followed in laying out or discontinuing a highway is wholly statutory and the method prescribed must be substantially complied with or the proceedings will be void. Town of Barton v. Town of Sutton, 93 Vt. 102, 103, 106 A. 583.
V.S. 47, § 5076, provides in substance that when a highway is to be laid out, altered or discontinued extending into or through two or more towns in the same county application shall be made to the county court. The court appoints commissioners and the same procedure is to be followed as when the highway is located in only one town, except that the notices shall be given to the selectmen of each town.
Here, No. 4 of the agreed statement of facts specifies that the highway in question commences in the town of Sunderland, crosses through a portion of the town of Manchester and runs into the town of Sandgate. The county court under § 5076 and not the selectmen had jurisdiction. Kent v. Town of Wallingford, 42 Vt. 651, 656; Kelley v. Towns of Danby, Wallingford, and Tinmouth, 46 Vt. 504, 510, 511; Platt v. Towns of Milton & Colchester, 55 Vt. 490, 491.
The fact that the selectmen of the town of Sandgate similarly altered and made a trail of that portion of the highway located in that town does not alter the situation. It seems more than a coincidence that the selectmen of the two towns took identical action in the same month and year. The statute cannot be circumvented and jurisdiction thus conferred upon the selectmen of each town into or through which the highway passed. Jurisdiction may not be conferred by splitting such at indivisible matter into several units. If this is attempted, prohibition is the proper remedy. Bullard v. Thorpe, 66 Vt. 599, 605, 30 A. 36, 25 L.R.A. 605. The selectmen had no jurisdiction to proceed as was done here under V.S. 47, §§...
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Preseault v. U.S., s. 93-5067
...32 Vt. 367 (1859) (public highway easement held to permit public use of the easement for water supply services). 16 Cf. In re Mattison, 120 Vt. 459, 144 A.2d 778 (1958) (holding that selectmen of a town did not have legal authority to convert a public roadway into a hiking trail). But see W......
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