Town of Mount Holly v. Buswell

The opinion of the court was delivered by Ross, J. The referee has found that in 1857, the selectmen of the plaintiff laid out a road, two hundred and twenty rods in length, mostly on the defendant’s land, and for his benefit, under an agreement between them and the defendant, that the defendant should charge no land-damages, build the road, and keep it in repair so long as he lived on the farm whore he then resided, and that all taxes raised by the town and assessed upon the grand list of the defendant for the purpose of repairing highways in the town, should be remitted to the defendant, so long as ho continued to keep the road thus laid in repair. The report shows that the defendant has always performed his part of this agreement, and that the town, up to the great freshet of 1869, fulfilled its part of this agreement, and remitted to the defendant, in one way and another, all the taxes assessed against him for the purpose of repairing highways. After the freshet of 1869, the defendant put the highway so laid out in repair, at an expense of about $12. The town assessed for repairing the highways in the town against the defendant, a tax of $84.70. The selectmen remitted this tax to the defendant by giving him an order on the town treasurer, on his representing he had such an agreement with the town, and that it was on record, and on his promise to refund if it was not so. The agreement turns out not to be fully on record, and this suit is brought to recover back the sum thus remitted. The plaintiff has argued its right of recovery mainly upon the ground of want of authority in the selectmen to make such an agreement on behalf of the town. If the agreement had not been recognized by the town in various ways, and if the town had not re [362] .ceived the full benefit of the agreement by the defendant’s waiving his land-damages, building the road, and repairing it for ¡twelve years, it might be an open question whether the selectmen, •by virtue .of their office, had the right to make such an agreement. We think, after the action of the town in recognition of that agreement, as found by the referee, and after it has received .the benefit of the agreement on its part, it is no longer an open ques- ' tion, and that the town is as much bound by it as it would be if it had specially authorized its selectmen by a vote in a meeting duly •warned to enter into such a contract with the defendant. The ¡tax sought to be recovered by the town, falls exactly within the class of taxes which were to be remitted by the agreement, as ¡found by the referee, and the defendant rightfully obtained an .order from the selectmen for 1869, remitting said tax, although he procured the order by stating, innocently, that the agreement was on record, when it was not fully on record. The defendant honestly believed it was fully recorded. The judgment of the county court is reversed, and judgment on the report that the defendant recover his costs.