Winooski Lumber & Water Power Co. v. Town of Colchester

The opinion of the court was delivered by Yeazey, J. The demurrer to the replication raises the question whether the action of the selectmen as recorded in the town clerk’s office, in connection with the recorded surrey of the highways in question under the dedication in 1838, all as set forth in the replication, shows a record of the laying out of said highways, or was only an order of removal of obstructions from existing highways. Counsel [541] agree that if it shows the former, the County Court had jurisdiction; if the latter, that court had no jurisdiction, the statute not having provided for a petition to the County Court in the nature of an appeal in the case of an order of removal of obstructions. Hogaboon v. Highgate, 55 Vt. 412. In the application to the selectmen the iJetitionors used the word “open” instead of the words of the statute “lay out”; and in the order of the selectmen they adopted the same form of expression used in the petition. We do not think the precise words of the statute are essential in order to constitute a “ laying out” of a highway. An equivalent expression is proper and as effectual, where the purpose is, as indicated by the order as a whole, to lay out a highway. We also think the provision of section 2923 R. L., requiring a survey to be made when the selectmen lay out a highway, would be complied with by reference to and adoption of a recorded survey, as was done in this ■ case. Milford's Petition, 37 N. H. 57; Hall v. Manchester, 39 N. H. 303. We do not think the right to bring this petition, being in the nature of an appeal, is destroyed by failure of the selectmen to follow the statutory requirements as to width of the highway, or to make the termini certain and definite. The formality o'f the proceedings accords with those usually adopted in laying out a highway, and is unusual in proceedings for removal of obstructions from an existing highway. The phraseology of the order is appropriate to the latter purpose, but equally appropriate to the former,— especially in view of the dedication previously made. That part of the proceeding, in the laying out of a highway, which constitutes the taking of the land and tendering the land damages, had been anticipated by the action of the land owner. He had dedicated the land and had caused a survey to be made and recorded. Thereupon the selectmen upon petition and hearing as in the laying out of a highway “ decided and adjudged that the public good and the [542] necessity and convenience of individuals required the opening of East Street and Canal Street agreeably with the survey,” &c.; and ordered fences and other obstructions named to be removed, giving six months time as required,— R. L. s. 2926, — and then ordered said streets to be “worked and opened for public use,” by a time named after the expiration of the six months. Instead of accepting the dedication as commonly done by working and using the streets, the selectmen proceeded, as we think, to “lay out” the streets or highways under the statutes in that behalf, but standing upon the dedication as proffered in 1838, as still open for acceptance and as constituting an assent of the land owner and waiver of land damages and thereby removing all occasion for notice or hearing on the question of- land damages. Whether there was a dedication still binding upon the present land, owner, is a question which we do not pass upon. We only hold that the proceedings of the selectmen as recorded, taken with the recorded survey adopted by them, as set forth in the replication to which we are restricted, show a record of a “laying out” of the highways in question. Judgment affirmed and cause remanded to be proceeded with.