Robinson v. Winch
| Decision Date | 07 March 1894 |
| Citation | 28 A. 884,66 Vt. 110 |
| Parties | J.S. ROBINSON v. C.M. WINCH |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Trespass quare clausum. Pleas, the general issue, and that the trespasses complained of were done in the construction of a public highway. Trial by court at the March term, 1893 Washington county, TAFT, J., presiding. Judgment for the defendant. The plaintiff excepts. The facts appear in the opinion.
Judgment affirmed.
Geo W. Wing for the plaintiff.
The defendant, as one of the board of selectmen of the town of Barre, entered upon the plaintiff's land for the purpose of laying out a highway. The selectmen laid out a highway over the plaintiff's land, and the defendant subsequently entered upon the land over which the highway was laid and built the highway.
It does not affirmatively appear that the selectmen notified the plaintiff of the time when, or the place where, they would hear him upon the question of whether the public good or convenience of individuals required such highway; but it does appear from the record that they heard "all parties interested, as the law requires." The plaintiff was an interested party, and it sufficiently appears from the record that he was heard upon this question; and it does not appear that he made any objection on account of the insufficiency of the notice. By thus appearing and being heard he waived any objection he might have taken on account of the insufficiency or want of notice. Brock v. Barnet, 57 Vt. 172.
It does not appear from the record that the plaintiff was heard upon the assessment of his land damages, or that he was notified of the time and place of hearing claims for damages. For this omission of the selectmen the plaintiff cannot attack their doings in this collateral manner. State v. Vernon, 25 Vt. 244; Haynes v. Lassell, 29 Vt. 157. He has his remedy under R. L., s. 2932. In Slicer v. Hyde Park, 55 Vt. 481, it is held that a mortgagee of land, over which a highway is laid out without notice to him, has, under this section, ample remedy for the enforcement of his rights.
It is claimed that the record of the laying out of the highway is defective, in that no permanent monuments are established at either end. The highway commences at the northerly end of the highway, or pent road, leading past the dwelling house of J S. Robinson at a point near where there was formerly a starch factory, the pent road being described in volume 2, p. 216, of the town records of Barre. The point of commencement is thus fixed with sufficient certainty, and, by following the courses and distances indicated in the record, to the land of Henry Upton, the other terminus is ascertained with certainty. The court below found the survey and record sufficient, and we think there is not such uncertainty in the records in this respect as ought to render the doings of the selectmen void. ...
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