Lynch v. Town of Rutland

THOMPSON, J. I. The plaintiff is the owner in fee of the land in question. Neither the defendant nor the public has any right therein unless an easement in the public was created by the action of the selectmen of Rutland, March 5, 1866, in surveying and opening a highway, which, included this land within its limits. The report of the proceedings of the selectmen recorded in the town clerk’s office April 14, i860, does not state that any notice was given to the land owners except in respect to the damages which the selectmen proposed to pay on account of the survey and opening of the highway. Unless notice was given to the land owners so that they might be heard upon the primary question whether the public good or the necessity or convenience of individuals required the taking of their lands for public use, the selectmen acquired no jurisdiction of the subject matter of laying and opening the highway, and their acts in that behalf are void. LaFarrier v. Hardy, 66 Vt. 200. The special finding of the referee that neither the plaintiff nor his grantor, who then owned the land, ever received such notice, precludes any presumption of notice, if such a presumption can ever be madej in a proceeding of this kind by a tribunal acting under special and limited authority, and not of general jurisdiction. Neither the plaintiff nor his grantor ever waived the requisite notice, nor any of their rights. The proceedings of the selectmen in respect to surveying and opening the high [573] way are void as to the plaintiff, and he is entitled to the exclusive use and possession of the land. II. To recover in ejectment, the plaintiff must prove the defendant in possession of the premises at the commencement of the action. Evarts v. Dunton, Bray. 70; Stevens v. Griffith, 3 Vt. 448; Skinner v. McDaniels, 4 Vt. 418; Arbuckle v. Walker, 63 Vt. 34. Towns are political sub-divisions formed for the purpose of aiding in the carrying on the government of the state. In laying out highways by their selectmen they act as mere instrumentalities of the government for the benefit of the public. State v. Burlington, 36 Vt. 521; Welsh v. Rutland, 56 Vt. 228; Bates v. Rutland, 62 Vt. 178; Buchanan v. Barre, 66 Vt. 129; School District v. Bridfort, 63 Vt. 383. In the exercise of that duty the selectmen are the officers of the state, and not the agents of the town. A highway is created by the legal exercise of the reserved right of eminent domain. It is an easement in the public to use the soil for passing and repassing thereon and for such other purposes as highways are used. The fee of the soil remains in the owner. In the maintenance of highways the town is also only the hand of the state. It owns nothing in the highways established by its officers. All that the town takes is the burden of making and maintaining them, but it has no right nor possession peculiar to its inhabitants in respect to its highways except this burden. Its inhabitants have no use of the highway over those of any other town, or the public generally. As a town the defendant never disseized the plaintiff nor had possession of the plaintiff’s land, and this action cannot be maintained against it. Chamberlain v. Donahue, 41 Vt. 306. Judgment reversed, flaintiff non-suited, and judgment for defendant as tifón a non-suit. Start, J., being engaged in county court, did not sit.