Collins v. City of Barre

Watson, J. Section 3878 of the Public Statutes provides: “A selectman or road commissioner shall not alter a highway, by cutting down or raising the road-bed in front of a dwelling house or other building standing upon the line of such highway, more than three feet, -without first giving notice to the owners thereof, of a time when the selectmen will examine the premises, hear them upon the question of making such alteration and damages by reason of such alteration; at which time, the selectmen shall attend and hear said owners, if they desire to be heard.” By section 3879, if it shall be determined that the public good, or the necessity or convenience of individuals requires that such road-bed be altered by lowering or raising the same more than three feet, such change may be ordered, and the damages, if any, to the owners shall be determined and awarded. The interpretation of the law of these sections was before this Court in Fairbanks v. Rockingham, 75 Vt. 221, 54 Atl. 186, and it was there held that an alteration in the road-bed in the sense of the statute, begins when the lowering or raising of the road-bed exceeds three feet; that a change in this respect of not more than three feet is regarded by the statute as in the nature of ordinary repairs, and not as an alteration of the highway. So the case before us rests upon the allegations showing the raising of the road-bed in question to the extent of about nine feet in excess of that considered as of ordinary repairs. Such an alteration was not within the scope of the petition to the street commissioners asking for a resurvey and a relocation of that portion of Warren Street, nor did the notice published and given to abutting landowners of a hearing on the petition, show that any question pertaining to the raising of the road-bed, was involved or to be considered. The matter of grade is not mentioned in the record of those proceedings until that part of the report of the street commissioners, which shows their doings and conclusions reached. No one interested in the property here in question was present at the hearing had on the petition, nór consented to raising the road-bed, nor waived any rights relating thereto. On the question of making such alteration, as- well as on the question of damages, the owner of the property in question was entitled to notice and an opportunity to be heard. This was required by the statute, and was essential to the jurisdiction of the street commissioners of the subject matter of those questions. Without compliance with the statute in this regard, the commissioners [349] were without jurisdiction to act on any question of raising the road-bed more than three feet, and their actions in this respect were void so far as the owners of the property in question are concerned. La Farrier v. Hardy, et al., 66 Vt. 200, 28 Atl. 1030; Lynch v. Rutland, 66 Vt. 570, 29 Atl. 1015; Barber v. Vinton, 82 Vt. 327, 73 Atl. 881; Wheeler v. St. Johnsbury, 87 Vt. 46, 87 Atl. 349. It is urged that at the time of the purchase by Mrs. Collins of the premises in question, she knew or should have known that the records of Warren Street then on file in the city clerk’s office provided for the grade that was subsequently established. No notice of this kind in fact is shown; and since the action of the street commissioners in establishing a grade of more than three feet raise of the road-bed was without jurisdiction of the subject matter, as against the owners of the property in question, the record of the doings of the commissioners in this respect was not constructive notice to Mrs. Collins when she took the property by purchase. It is further urged that the plaintiffs have an adequate remedy at law and therefore this bill in equity will not lie. But the case of Wheeler v. St. Johnsbury, cited above, is full authority to the contrary. There, in a case sufficiently like the one at bar as to equity jurisdiction to make it controlling here, it was held that equity had jurisdiction on two grounds, namely, for want of an adequate remedy at law, and the prevention of a multiplicity of suits. And, finally, it is said that the plaintiffs are guilty of laches even if they were ever entitled to damages. But this defence cannot be raised by demurrer. Drake v. Wild, 65 Vt. 611, 27 Atl. 427; Gleason v. Carpenter, 74 Vt. 399, 52 Atl. 966; Wilder’s Ex’r v. Wilder, 82 Vt. 123, 72 Atl. 203. Pro. forma decree reversed, bill adjudged sufficient, and cause remanded.