Bell v. Prouty , 43 Vt. 279 ( 1870 )

The opinion of the court was delivered by

Wheeler, J.

Upon the declaration and proofs in this case the gist of the action is the obstruction of a pent road by the defendant to the damage of the plaintiff. A pent road is a public highway. The fact that the highway in question was in the defendant’s land was not at all material; the plaintiff’s right to recover did not at all depend upon the defendant’s ownership of the land in which the highway was ; he could as well recover of the defendant for the obstruction of a highway in the land of some other person to his damage as for the obstruction of a highway in the defendant’s own land to his damage. The allegation that the road was in the defendant’s land was mere matter of description. The substance of the allegation, in this respect, is the existence of the road; the general issue denied its existence. The evidence of the plaintiff supported his side of this issue, and.that of the defendant his side ; that of the plaintiff tended to show the road to be in part without the surveyed limits of it, and that the defendant had obstructed it both without and within them; that of the defendant tended to show the road to be wholly within the surveyed limits of it, and that he had not obstructed it there. The material question upon the evidence was, whether there was a highway or not which the defendant had obstructed. The proof followed the allegations and the title to land was as much concerned in the issue upon one as in that upon the other. No private right of way was in issue upon either. If the obstructions had remained until the town had become liable for damages in consequence of them, and an action had been brought against the town to recover for such damages, the title to land would have been as much concerned in that action as in this. In Whitman v. Pownal, 19 Vt., 223, it was held that the title to land was not so concerned, in actions against towns to recover for damages sustained by reason of the insufficiency of highways, but that justices had jurisdiction to try them. This case cannot be distinguished from those actions in this respect, and that decision is decisive of this case. No inference that the jurisdiction could be sustained upon the proofs, when it could not be upon the declaration, is to be drawn from the manner in which this case is here treated. Jakeway v. Barrett, 38 Vt., 316.

Judgment reversed and cause dismissed.