Snow v. Town of Sandgate

ROWELL, J. The State is not authorized to take private property for private use without the consent of the owner, even by paying therefor an equivalent in money; [454] for the Constitution, by declaring only that private property ought to be subservient to public uses when necessity requires it, by implication declares that it ought not to be subservient to any other uses without the consent of the owner. The commissioners find that the road prayed for begins and ends on the private lands of the petitioner Snow; that it neither begins, ends, nor intersects with any public highway, and is not accessible to any person but Snow without trespassing on his land; and that neither the public good nor the necessity nor convenience of individuals, other than Snow, requires it to be laid. It also appears that said private lands border on a highway from which they are accessible. This is a clear case of taking private property for private use without the consent of the owner. The road is a mere private way, for the sole and exclusive use of Snow. It is not like the road in Brock v. Barnet, 57 Vt. 172, which intersected at one end with a public highway, and was, therefore, useable by the public as it had occasion ; nor like that in Robinson v. Winch, 66 Vt. 110, which commenced at the end of a highway and ended at a prescriptive private way over the plaintiffs land. It appears that in 1878 the selectmen of the defendant town laid a pent road in this same place — which was built and is now in repair — on condition that Snow would pay the land damages and all other expenses to the town occasioned thereby, and give the town a bond with sufficient sureties that he would ever after save the town harmless from all expense occasioned by laying the road, which condition Snow has thus far kept and performed; but notwithstanding that, the town, in 1892, discontinued the road. The petitioners now claim that by laying the road on the conditions named, which Snow has kept and performed, both the town and the landowner are estopped from inter [455] fering with Snow in the use and enjoyment of the road. But this question does not arise, as this is a proceeding to lay the road de novo, and not a proceeding to determine whether there is a legal road already there or not. Besides, the laying of the road being ultra vires of the town, and the town receiving no benefit therefrom, it is probable that the doctrine of estoppel cannot be invoked against it. Bigelow, Estop. (3d Ed.) 466; I Dillon, Municip. Corp. (2d Ed.) s. 381; Town of South Ottawa v. Perkins, 94 U. S. 200. Judgment affirmed. Start, J., being engaged in County Court, did not sit.