Town of Bennington v. Smith

The opinion of the court was delivered by Redfield, Ch. J. This is a motion for certiorari for the purpose [256] of quashing the proceedings of the county court in establishing a highway in the village of Bennington,'where proceedings were first taken before the selectmen of the town, on the ground that the statute incorporating the village has given the exclusive jurisdiction of this subject, in the first instance, to the-trustees of the village. The fourth section of the act of incorporation of the village gives the trustees of the corporation power to expend two-thirds of the highway tax assessed by the selectmen of the town upon the polls and rateable estate within the village, and “ to lay out, alter, maintain and discontinue any street, road, lane or walk in said village,” and to appraise and settle damages, giving the same right of appeal to the county court as in cases of highways laid out by the selectmen, but in no manner, by express terms, taking away any control the selectmen might have over the highway within the village. There may be some incongruity in having a concurrent power to lay out and discontinue highways in a village, vested in the selectmen of the town and the trustees of the village. But we think if it had been the purpose of the legislature to deprive the selectmen of the town of all control over the subject, some more specific provisions upon the subject would have been considered necessary. As the law now stands there is no provision for compelling the village by indictment to keep their highways in repair, or for maintaining an action against them for losses sustained by reason of defects therein. And there is no provision, upon the construction claimed, for laying highways continuously, part of which lie within the limits of the village and part without. We think these matters should be provided for, and the burden of maintaining highways in the village, and liability for damages on account of defects therein, be transferred to the village, before we could feel justified, by mere construction, in depriving the selectmen of the town of all control over the subject. Petition dismissed with costs.