Culver v. Town of Fair Haven , 67 Vt. 163 ( 1894 )

TAFT, J.

The selectmen of Fair Haven resurveyed a highway under the provisions of s. 2920, R. L., which reads as follows :

“If the survey of a highway has not been properly recorded, or the record preserved, or if its terminations and boundaries cannot be ascertained, the selectmen may resurvey the same, and' make a record thereof in the town clerk’s office ; but fences or buildings erected or continued thereon for more than fifteen years shall not be removed, or the lands enclosed.taken for the highway, without compensation as in other cases of altering highways.”

The petitioner, under No. 15, Acts 1886, took an appeal to the county court, alleging that he was the owner of land included in the resurvey; that it had been enclosed for more than fifteen years, and That no damages had been allowed him for the land so taken; and further alleging that the public good, or the convenience of individuals, did not require a resurvey of said highway. Commissioners were appointed by the county court, who reported that the highway was originally surveyed and laid out April 10, 1788, including in their report an accurate description of the survey, with its termini and courses. The commissioners further reported that the boundary of the highway at one terminus could not be ascertained, nor can it now be ascertained and located with any degree of certainty; that the resurvey of the east line of the highway was not, nor was it intended by the selectmen to be, a reproduction of the old or original survey of the highway at that point. This in substance is all that the commissioners report in relation to the case before them. There are no findings upon the various questions presented by the petition — whether the petitioner was the owner of land included in the resurvey, whether such land, if any, had been enclosed for more than fifteen years, whether the petitioner had sustained damages, and if so, how much, etc. It is not stated in the report why the commissioners did not report fully upon the case before them, but we infer that it was for the reason that having found the lines of the original survey could not be reproduced, nor ascertained and located as they were when first surveyed in 1788, they were of the opinion that the selectmen had no jurisdiction nor legal authority to make a resurvey. This is the view taken by the petitioner’s counsel, who argues that for that reason the selectmen had no jurisdiction ; that the whole proceedings are void, citing Trudeau v. Sheldon, 62 Vt. 198. That case simply holds that “the fact'that a survey has been made must appear to give the selectmen jurisdiction to make a resurvey.” There are three instances in which a resurvey of a highway can be made — if the survey has not been properly recorded, if the record has not been preserved, if its terminations and boundaries cannot be ascertained. It is evident from the report that the survey was recorded and the record preserved, so that in neither of these respects could a resurvey be made; but the commissioners report that at the time of the action of the selectmen the boundary of the highway at the point of beginning could not be ascertained, neither could it at the time of the hearing before them. Thus the commissioners-found the very fact that gave the selectmen jurisdiction to make a resurvey o'f the highway, viz., that “its terminations and boundaries, cannot be ascertained.” To say that the word resurvey as used in the statute means nothing more than to locate the lines of the boundaries in their original location is to give the word too narrow a construction. If the terminations and boundaries can be ascertained according to the original survey, there is no need of a resurvey. Under this section of the statute to resurvey a highway means to re-locate it, and the lines may be where originally located and maybe elsewhere. Whether the lines by the resurvey are where the lines of the original survey were, can in no case be known, for the location of the latter cannot be ascertained. When the fact that the terminations and boundaries of the highway could not be ascertained, was found by the commissioners, it was their duty to investigate the various questions presented by the petition and evidence and report the facts found by them : such facts as whether the petitioner’s land was taken by the resurvey, whether, if any, it had been enclosed for more than fifteen years, the damages sustained by the petitioner, if any, etc. That the commissioners may investigate and report such facts it is necessary that the report be recommitted to them, and for that purpose the

Judgment is reversed and cause remanded.