Town of Rutland v. Pierpoint , 61 Vt. 306 ( 1889 )

The opinion of the court was delivered by

Tyler, J.

In this case the selectmen, supposing from Evelyn Pierpoint’s connection with the matter of laying the highway in question that he was the sole owner of the land through which it passed, without examination or inquiry as to the state of the-title, awarded to him- the sum of two hundred dollars, which they considered full compensation for damages. Had they understood that there were other owners of the land in common with said Evelyn, their award would have been no greater, but it would have been to all the owners in proportion to their respective-interests. The town of Rutland brings this bill praying that it may be relieved from the'consequences of the mistake of its selectmen, and that the award of two hundred dollars may. be-decreed to all the defendants according to their and each of their rights thereto.

The first -question that arises is, whether defendant Evelyn was to such an extent the agent of the other two defendants that they were bound by his action. The master finds that he had had the possession and general management of the real estate for many years; that he was accustomed and was authorized to represent all the owners in ordinary matters relative to the property, but was not authorized to conclude agreements t.o sell the land without consulting the others. He further finds fhat it was Evelyn’s intention in his conferences’ with the selectmen to secure the allowance of full damages, and that all his conversations with them were in relation to the entire damage to the land, and not as to the damage to any undivided interest therein. ■

We think that the laying of the highway was an ordinary matter relating to the property. It did not require a deed. It was not a sale. It imposed a public servitude upon the land and nothing was required of defendant Evelyn but the administrative ■duty of seeing that his own rights and those of his co-tenants were protected.

The bill alleges that defendant Evelyn had the entire management of said land and of the claims for damages, and that he appeared and claimed full damages of the selectmen, who made itheir award therefor. Defendant Evelyn makes answer and -denies these allegations and avers that the sum awarded is no more than adequate for his own damages, exclusive of those of his co-tenants. The other two defendants make no answer and -do not appear, therefore it must be taken as confessed by them .that these allegations are true.

The case presented, therefore, is that the selectmen through mistake awarded to one of the tenants in common a sum that was ample for all and that should have been awarded to all according,’to their several • interests., By defendant Evelyn’s connection with the matter, especially by his omission to take ah appeal when informed by the selectmen that their award was for all the owners, he should be precluded from saying that the •award should not be corrected. The other defendants do not ■contend that ’ it should not be corrected so as to carry out the real intention of the selectmen. We think the orator clearly •entitled to the relief prayed for.

The decree of the chancellor dismissing the bill is reversed -and cause remanded to the Court of' Chancery with mandate that a decree be entered for the orator according to the prayer of the bill.