Connecticut & Passumpsic Rivers R. R. v. Town of St. Johnsbury

The opinion of the court was delivered by Taft, J. The selectmen of the defendant town laid out a highway across the petitioner’s track at grade ; the petitioner took an appeal to the County Court; commissioners were appointed, who reported in favor of laying out the highway at grade with the track, and the highway was so established. The petitioner brought the cause to this court, and it was held that neither the selectmen nor the County Court could establish a highway across a railroad track at grade with the track, and remanded the cause for proceedings subject to said limitation. Central Vt. R. R. Co. v. Royalton, and this case. 58 Vt. 234. Subsequently to such ruling the legislature enacted a law authorizing the laying of highways across railroad tracks at grade. Act No. 20, Session Laws, 1886. Under this statute the County Court held that in this case a highway may be established at grade with the track, and this holding is the question now before us for revision. Was it error or not ? In highway cases [324] of this character the jurisdiction of the County Court is appellate only. The question of whether a highway should of should not be laid out, must first be acted upon by the selectmen of the town; and in no case can the County Court acquire jurisdiction until such action is had. At the time the selectmen acted and established the highway at grade, they had no jurisdiction in the matter, and could not legally act therein, i. e., in laying out the higlrway at grade. The selectmen having, at the time the highway was laid out, no jurisdiction nor power to so establish it, it follows that the County Court acquired none by the appeal. The Act of 1886, referred to, gives it no original jurisdiction. If a road is to be established at grade proceedings must be begun de novo. The action of the County Court was erroneous. Judgment reversed, and cause remanded to be proceeded with as directed by the mandate from the General Term, 1886.