State v. Inhabitants of Brookfield , 2 Vt. 548 ( 1830 )

The opinion of the Court was pronounced by

Hutchinson, J.

This indictment complains of the defendants for not making and opening a road, laid through said town'by a committee heretofore appointed by the Supreme Court, when in session in the county of Washington. It is now objected in arrest, that the term of the court, when this road was established, is not sufficiently described. The description is, at the term, &c. begun and holden at Montpelier, in August, 1825. This the Court consider well enough. 1, It is a true description. 2. It truly describes the term as fixed by the statute ; and 3. There is no other term that bears this description, or any thing bordering upon it. Our statute fixes the times and places for the terms of the courts, in the several counties, but has given no technical name or description to any term.

The respondents next urge thewantof aprofertoftberecordof the court establishing the road. No authorities are produced, and no forms shown, that require any profert of, or reference to, the record, in drawing indictments. Such a requirement would be inconsistent, as the indictment is the language of the grand jurors, whose duty it cannot be to bring into court a transcript of the record, especially as the court have more controul over their records than the jurors are supposed to have.

Again, it is objected, that the indictment does not contain aver-ments, that sufficiently show a road regularly laid, to impose any duty upon them to make the same. The indictment is not very technical in this respect; and the important averments upon this point are not arranged together as might have been desirable. But it contains the averments, that the said Supreme Court, at said term, accepted the report of a certain committee, by said Court previously appointed to lay a road from, &c. to,&.c.; and established the road by them laid ; that a certain part of said road^ lying in said Brookfield, &c. beginning at, &c. and extending northward through the gulf, to, &tc. it was the duty of the respondents to make and open. All this sufficiently amonntsto an aver? ment that said committee laid a road.

It is further contended, that the indictment should contain g Ascription of the road by courses and distances. This we deem not necessary. Our statute has done away the necessity of this particularity in such indictments as lay at common law. This indictment would not lie at common law. It rests upon ti statute which describes the offence, but is silent as to the form of the indictment. It is better to follow the spirit and analogy of our other statute about particularity, than adhere to the ancient common law. Indeed, it appears by the passage cited from Chitty, that the ancient common law upon this point is scarcely considered binding at present in England.

It is further contended, that the indictment should show, that the survey of the road was recorded in the town clerk’s office in Brookfield, as that would be the notice to them of their duty to make the road. And they rely upon the analogy of the statute, which requires the survey made by selectmen to be recorded. On comparing the duties enjoined by the several statutes, it is obvious, that the committee have done their duty when they have .made their survey, and reported the same to the court, that appointed them. It is equally plain that is not a road till accepted and established by the court. The statute, then, is silent about the persons, who must procure the recording in the town clerk’s office. The selectmen have abundant notice of all this, by being regularly cited to appear before court, and show cause why a committee should not be appointed. It is rather their duty than that of any others to procure the record in the town clerk’s office.

The Court have found some difficulty upon another point not urged by counsel. The statute, requiring towns to make a road within a year from its establishment, does not in express terms apply to a road laid by a Supreme Court’s committee, but only to those laid by county court’s and legislative committees. But the statutes authorizing an indictment,clearly extend to this case. If, then, it is made the duty of the town to make and open this road, and they are liable to indictment for not doing it, and the statute has fixed no time within which they are to doit, it must be done in a reasonable time. It appears by this indictment, that a year and ten months had elapsed after the establishment of this road before the indictment was presented. We think this delay of the town was unreasonable-, and thus get over this difficult}'1, without expressly deciding whether a year’s neglect would render the town subject to indictment.

With regard to the exception to the exclusion of testimony, that was well answered by Mr. Attorney. It was a question settled by the establisment of the road. If there were great difficulty in making the road, that might furnish good reason for a new survey, or a discontinuance ; but not for leaving it unmade while it continues an established road. Moreover, the offer consisted of what might be inferred from certain facts, and not of the facts themselves. There is no such thing as an impossibility to make a road upon solid land. It may be very expensive,but cannot be Impossible ; and there is no pretence but that this road is laid upon land, solid land too.

JVutting, att’y for the state. Collamer, for the respondents.

Both motions were overruled, and the Court proceeded to assess a fine, and appoint an agent to expend the same in making the road.