Orcutt v. Town of Hartland

The opinion of the court was delivered by Dunton, J. While we do not question the authority of State v. Williston, 31 Vt. 153, we do not think anything more is required of the defendant town by the report of the commissioners as to the mode of constructing the proposed highway, than is required of them by law. Independent of the requirement of the report, as to how such highway shall be constructed, it is the legal duty of the defendant town to so construct the same as not to unreasonably endanger the railroad, by making it more liable to obstruction by the sliding of earth upon it than it was before. We therefore regard the error complained of as a formal one, not affecting the liability of the defendant town. Section 2, No. 38, Sts. 1872, provides that no judgment of the County Court in cases like this, shall be reversed, unless this court would have granted a writ of certiorari, for the same cause. But such writ has been uniformly denied by this court, unless the error complained of was one affecting the substantial justice of the case. See West River Bridge Co. v. Dix, 16 Vt. 446 ; Myers v. Pownal, Ib. 415; Rockingham v. Westminster, 24 Vt. 288; Pomfret v. Hartford, 42 Vt. 134, and Chase v. Rutland, 47 Vt. 393. Judgment affirmed.