Town of Shrewsbury v. John E. Davis

• Decision Date: 09 May 1928
• Citation: 142 A. 91,101 Vt. 181
• Parties: TOWN OF SHREWSBURY v. JOHN E. DAVIS ET AL
• Court: Vermont Supreme Court

142 A. 91

101 Vt. 181

TOWN OF SHREWSBURY v. JOHN E. DAVIS ET AL

Supreme Court of Vermont

May 9, 1928

May Term, 1928.

Highways---Status of Selectmen under G. L. 4479---Scope of County Court's Appellate Jurisdiction from Action of Selectman---Right of County Road Commissioners To Order Repair of Highway During Pendency of Appeal from Action of Selectmen Discontinuing Highway---Vacation of Selectmen's Order of Discontinuance by Appeal---Status of County Road Commissioners under G. L 4604--4610---Divisibility of Claim for Repairs on Highway at Different Points---Conclusiveness of Report of County Road Commissioners as to Highway's Need of Repair and Amount Required Therefor.

1. Under G. L. 4479, selectmen of a town constitute an inferior tribunal having certain quasi judicial powers with special and limited jurisdiction as to matter of discontinuing certain highways, and their powers in such respect are confined to the classes there specified.

2. Appellate jurisdiction of county court in appeal from action of selectmen under G. L. 4479 in discontinuing a highway is confined to decree or order made by selectmen from which appeal was taken.

3. Pendency of appeal in county court from order of selectmen under G. L. 4479, discontinuing a highway, held not to prevent county road commissioners from ordering repairs to such highway under the provisions of G. L. 4604--4610, since only question heard and determined by selectmen, pursuant to notice posted by them, was as to discontinuance of highway described therein, and petition to county court, being in nature of appeal from their order, was confined to same question, and question of repairing road was entirely outside scope of such proceedings.

4. Order of discontinuance of a highway made by selectmen under G. L. 4479 is vacated by appeal to county court therefrom and highway is reinstated to its former existence.

5. County road commissioners, acting under provisions of G. L 4604--4610, constitute a tribunal which is quasi judicial in character, and, within scope of its powers, is superior to selectmen of a town.

6. Where petition in proceedings under G. L. 4604--4610 before county road commissioners, after setting forth general description of a highway more than 1 1/2 miles long, alleged that said highway was then "out of repair and insufficient for public travel for at least fifty rods from the point of beginning," and at hearing of which all parties interested had been notified they were heard as to conditions thereof, repairs necessary, and amount required for repairs, and 50 rods in question were examined by commissioners, and it appeared to their satisfaction that following the strip specifically mentioned as out of repair was a piece of road 75 to 100 rods in length which was in fairly good condition, needing only minor repairs, and then another strip of badly washed road, held that claim for repairs to be made at those two points did not constitute an entire indivisible claim for repairs on that highway, but that claim for repairs to be made on the 50-rod strip was divisible from claim for repairs at other washout or washouts on highway.

7. Writ of prohibition is not available to correct error of county road commissioners in underestimating adequate amount to repair highway, since by G. L. 4607 their report as to neces-

sary repairs and amount required therefor is final and conclusive.

PETITION for writ of prohibition by town of Shrewsbury against county road commissioners of Rutland County. Heard on answer and depositions taken in said proceeding. The opinion states the case.

Petition dismissed with costs.

Charles L. Howe and Fenton, Wing & Morse for the petitioner.

Lawrence, Stafford & Bloomer for the petitionees.

STATEMENT BY CHIEF JUSTICE WATSON: This is a petition by the town of Shrewsbury for a writ of prohibition, praying that the writ may issue prohibiting John E. Davis, Edward J. Smith, and Wilson H. Tarble as county road commissioners from further proceeding in the matters pertaining to the town of Shrewsbury's repairing a certain public highway therein, described as follows: "It being a public highway running easterly from the main road south through Clarendon into Cuttingsville, said road beginning a short distance south of the first Rutland Railroad grade crossing near the Clarendon and Shrewsbury Town Line, and running thence easterly about one and one-half miles to the A. (Anthony) Adams Farm in School District No. 11, and thence on to the road intersection." Further praying that the county road commissioners be prohibited from appointing any agent to expend any money on said highway, and from filing any certificate in the office of the county clerk, or otherwise procuring or attempting to procure any judgment to be entered thereon or any execution to issue out of said court in respect thereto; further praying that all proceedings under the report, decision, and order of said road commissioners be stayed until the final hearing of this petition or until further order of the court in the premises; also praying that the petitionees Clarence F. Parker, C. T. Page and Frederick Gienger may by the order of this court be prohibited from instituting or causing to be instituted any further proceedings respecting said highway and the matters involved and included in the petition (referred to below) now pending before the Rutland county court, until final determination of the matters involved in such last named petition or appeal.

The instant petition to this Court was dated July 27, 1927, the order based thereon to show cause why, etc., was issued July 28. All of which with proper summons were served on each of the defendants within the two days following. Answer was filed August 13.

This petition alleges, among other things, in effect that on September 22, 1926, the selectmen of the town of Shrewsbury, having previously given due notice that they would meet at the town clerk's office in said town on the 14th day of September, 1926, at ten o'clock in the forenoon, for the purpose of examining the premises and hearing all persons interested in the matter of the discontinuance of the highway above described, and having, according to said notice, attended at the place and hour set, and the said petitionees, Parker, Page, and Gienger, and J. A. Lapan, J. Heath, and H. Jakeway, all of Shrewsbury, except Parker who resides in Clarendon, having appeared by themselves and by counsel and objected to the discontinuance of said highway, and the said selectmen having heard all parties interested, examined the premises, and duly considered the matters, did thereupon file in the town clerk's office in said Shrewsbury, their decision and order discontinuing said highway "from the farm buildings on the Anthony Adams farm, so-called, owned by Frederick Gienger, southerly and westerly to the highway leading from East Clarendon, so-called, in the town of Clarendon, to Cuttingsville, so-called, in said Shrewsbury," copies of which said notice and order, marked, respectively, Exhibit A and Exhibit B, are attached to the instant petition.

Further alleging that thereafter, on the same 22d day of September, the said petitionees Parker, Page, Gienger, Lapan, Heath, and Jakeway duly appealed by way of petition to the county court from said "decision and order" of the selectmen, which said appeal was duly filed and entered in said court, and is still pending therein. Copy of said petition and citation attached thereto are annexed to the instant petition and marked Exhibit C. Further alleging that upon the motion of the said appellants, commissioners were appointed by said court to hear, determine and report respecting the matters involved in such appeal. Further alleging that on the 11th day of October, 1926, and after the taking of such appeal the said appellants gave written notice to Barney A. Smith one of the selectmen aforesaid, the body of which notice was as follows:

"In accordance with the statute in such case made and provided, we, the undersigned, being taxpayers of the Town of Shrewsbury, and citizens of said Shrewsbury, except Clarence F. Parker who resides in Clarendon, notify you that the road or public highway running easterly from the main road south through Clarendon into Cuttingsville, said road beginning a short distance south of the first Rutland Railroad grade crossing near the Clarendon and Shrewsbury town line and running thence easterly about one and one-half miles to the old A. Adams farm in School District No. 11 and thence on (to) the road intersection is unsafe for travel and out of repair in that said road is badly washed out so that teams and vehicles cannot pass without danger to life and limb.

"The undersigned are users of said highway and the surface of the road should be filled in and graded with proper sluices and water bars.

"We trust that you as one of the selectmen of the town will see to it that work is commenced on said highway within the thirty-six (36) hours which the statute set forth."

The record further shows that said town having neglected to commence work on said highway within the time thus limited the county road commissioners, on complaint being filed with them by three of said appellants that said highway was out of repair and insufficient for public travel for at least fifty rods from the point of beginning, notified said selectmen that said commissioners would be at the town clerk's office in said town on July 5, at noon, for a hearing in respect to said road; that at said time and place, said selectmen by themselves and by counsel appeared before said commissioners and protested against the proceedings then being attempted by the latter, upon the ground that they had no jurisdiction in the premises, as the...