Pomeroy v. Mills , 3 Vt. 279 ( 1830 )

Prentiss, C. J.,

pronounced the opinion of the Court. — As early as 1794, the land, of which the premises in question form a part, then belonging to the proprietors of Burlington and undivided, was set apart for a public square or common. In 1795, a courthouse, and in 1796 a jail, were built upon it; and in 1798, the proprietors passed a vote, setting off the square “ for the use oí the public, for the erecting of all necessary county and town buildings for public use.” From 1794, until the defendants erected their building upon it in 1821, the square, forming an area of two acres and a half, was used, with the exception of the portions taken as sites for a court house and jail, as a public highway, and has continued to be so used ever since. In the case of the State vs. Wilkinson, 2 Vermont Rep. 480, where the owner of the land laid out a street, we held it to be a grant or dedication to public use, and that the public, having used it as a highway, acquired an easement which could not be disturbed. By the laying out of the square, and the uninterrupted use of it by the public for nearly forty years, it has become a common highway. But in addition to the public right of way, which is a franchise common to all, the vote of the proprietors gave to the town and county the right of erecting upon the square their necessary public buildings; and this, like the right of way, is an easement upon the land, and not an interest in the land itself. The vote is mere evidence of an appropriation or dedication to the public; and the words, for the use of the public, show that the intention was to give a mere easement, which is denfied to be a liberty, privilege, or advantage in land, without profit, existing distinct from an ownership of the soil. No property in the land was conveyed ; nor was it necessary for the purposes to which it was intended to appropriate it, that the soil and freehold should pass. Indeed, if the proprietors had been authorized by statute to grant their lands by vote, without deed, as they were to make a division of them amongst themselves, yet as there was no grantee in whom the legal estate could vest, no estate in fee simple could pass by the vote. From the vote, connected with the use of the square by the public as a highway, the right granted must be regarded as a mere easement; and as the vote excludes any use or occupation of the square for other purposes, than a highway and sites for public buildings, it follows that the town of Burlington could not convey to the defendants a right to an exclusive possession of any portion of the square.

If the public have a mere-easement, the plaintiff, as proprietor of an undivided share oflands in the town, may maintain ejectment against the defendants, and recover subject to the easement. By setting out the square for the purposes stated, the proprietors, as already suggested, did not part with the property of the soil, but it remained m them although incumbered with an easement. It is well settled, that the owner of land, taken for a highway, retains his exclusive right in the soil, for every purpose oí use or profit, not inconsistent with the public casement, and may maintain tress-pass or ejectment for any encroachment upon it. (Lade vs. Shepard, 2 Stra. 1004; Goodtitle vs. Alker, 1 Bur. 153; Harrison vs. Parker, 6 East, 154; Jackson vs. Hathaway, 15 John. Rep. 447; Perley vs. Chandler, 6 Mass. 454.)

Judgement reversed, and the cause remanded to the county court for a new trial.