Town of Clarendon v. Rutland R. Co.

• Decision Date: 27 August 1902
• Citation: 75 Vt. 6,52 A. 1057
• Court: Vermont Supreme Court
• Parties: TOWN OF CLARENDON v. RUTLAND R. CO.

52 A. 1057

75 Vt. 6

TOWN OF CLARENDON

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

Aug. 27, 1902.

Exceptions from Rutland county court; Start, Judge.

Action by the town of Clarendon against the Rutland Railroad Company. From a pro forma judgment for the plaintiff, the defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and STAFFORD, JJ.

Butler & Moloney and George E. Lawrence, for plaintiff. Frederick H. Button and William H. Button, for defendant.

TYLER, J. Assumpsit, under V. S. 3846, to recover the amount expended by the plaintiff in building a bridge upon an alleged highway that extends across the defendant's railroad in said town. The defendant in the year 1848, under a charter granted by the legislature in the year 1843 to the Champlain & Connecticut Railroad Company, to whose franchises it succeeded, by condemnation proceedings acquired a right of way five rods wide, running in a northerly and southerly direction through the town, crossing the farm of Enoch Smith, and built its railroad upon it. On the east side of the five rods was a main highway of the town, called the "East Road," running in the same general direction with and near the railroad. The buildings upon the Smith farm were west of the railroad, which was constructed in a cut opposite said buildings, so that an overhead crossing was necessary for persons and teams to pass between the buildings and the East road, and a crossing was constructed by the railroad company for that purpose. The condemnation proceedings included the location of the crossing and the approaches to it. There was no record evidence that a highway was ever laid out or surveyed between the Smith buildings and the East road, or that the defendant or its predecessor ever took any corporate action in respect to a dedication of the premises to the public as a highway; but it appeared that the defendant maintained a crossing there until a short time before the present bridge was built, when the defendant tore it down by reason of its unsafe condition. The jury were not required to return a general verdict, but they found by special verdicts that the highway in question was a public highway when the plaintiff notified the defendant to rebuild the bridge; that it was a public highway at and before the time the railroad was built through the Smith farm; that the plaintiff's selectmen adjudged that it was necessary to rebuild the bridge, and so notified the defendant; and that the sum expended in rebuilding it was reasonable.

1. The first question presented by the exceptions is whether the plaintiff's evidence tended to show that at the time the railroad was located and built it was extended over a then existing public highway at the point in question, or whether the court should have directed a verdict as moved by the defendant. As this road was not laid out and opened in the manner provided by the statute, the question is whether there was a dedication to the public and an acceptance by the town; for it is well settled that neither a dedication of land to the public for a highway, nor the use of it as such by the public, is sufficient to impose upon a town the duty to keep it in repair, unless it has been accepted and adopted by the proper town officers. An intention to adopt the road as an existing highway must be manifested by acts of the town authorities. Pratt v. Town of Swanton, 15 Vt. 147; Hyde v. Town of Jamaica, 27 Vt. 443; Folsom v. Town of Underbill, 36 Vt. 580; Tower v. Town of Rutland, 56 Vt. 28. In Folsom v. Town of Underlain, the court laid down this rule: "The opening of a road by the landowners to public use, and its use by the public without interruption, and the allowance by the landowners of repairs upon it at the public expense, are facts which would tend strongly to show the intention to dedicate the land by the landowners to the use of a public highway. If this intention was unequivocally manifested, the dedication, so far as the owners of the soil were concerned, was complete; and, if the land was accepted and used by the public in the manner intended, the owner and all claiming in his right would be precluded from asserting any ownership inconsistent with such use." In the present case the court instructed the jury, in accordance with the well-established rules, that there must have been an Intention by the landowner to dedicate, a manifestation of that intention by his acts, and an acceptance or adoption by a majority of the selectmen. The plaintiff's evidence tended to show that the buildings on the Smith farm had occupied the place where they now stand for more than a hundred years, that the only way of going from them to the main highway and returning was by this road, and that it was in existence before the railroad was built. These facts, and the facts that the road was fenced and kept open for public travel, and that the public used it as there was occasion, were evidence from which the jury were warranted in finding both an Intention to dedicate and the act of dedication by the landowner. We think the evidence tends to show an adoption of this road by the town. The witness Crossman testified that he was 84 years old, and had lived upon a farm adjoining the Smith farm since he was two years old; that the Smith house was apparently old when he first knew it; that he had known the road as long as he could remember; that it was bounded by old stone walls, and had always been a public road; that it was in existence before the railroad was built, and that the railroad company built a trestle bridge over its track, so the public could continue to use the road; that he was highway surveyor before the railroad was built; that the selectmen gave him tax bills, with directions to repair "all the roads" in his district, which he understood included this one. because it was one that "they usually kept in repair." He had reason to remember that he repaired the road the year the railroad was built, because, as he says, it got out of repair by stone being drawn over it for use in building the railroad, and he was directed by the selectmen to lay out more money upon it than was upon the tax bill. His testimony tended to show that in the year the railroad was built, and in previous years, as highway surveyor he received tax bills from the selectmen, which included this road; that he expended money upon it, as upon other roads, and returned the tax bills to the selectmen. This evidence was properly admitted. Grossman's testimony also tended to show that in 1862 or 1863 the rail road company removed the trestle bridge, and built a new one in its place, with stone abutments, which was removed by the defendant, and replaced by the plaintiff by the bridge in controversy. Another witness, who was born in the Smith house in 1830, testified that he knew this road prior to 1847, and that it was then fenced and used as a public highway. All this evidence was properly admitted as tending to show that this road was a public highway by acceptance and adoption by the plaintiff town, and it was not error to submit the question to the jury.

2. The defendant makes the further point that its whole duty was performed when it had constructed the original crossing to the satisfaction of the selectmen, and that it did not owe the town the duty of maintaining it. This claim renders it necessary to examine the company's charter. Section 14 is as follows: "If said railroad shall cross * * * any canal, highway, or turnpike, the same shall...