Adams v. Town of Derby , 73 Vt. 258 ( 1901 )

Taft, C. J.

I. The selectmen had authority to re-survey the highway in question in case its terminations and boundaries could not be ascertained. The commissioner’s report shows that when the proceedings were instituted the boundaries of the road could not be ascertained accurately, and since the finding of the lost survey the starting point can only be approximately determined. For the latter reason therefore the selectmen had authority to re-survey the highway. The petitioners insist that the proceedings should show that the selectmen had jurisdiction. The record of the proceedings has not been furnished us, and if it is necessary, we infer, not that the selectmen had jurisdiction, but that the record shows that they had.

II. The town claims that the petitioner Laura F. Adams is not entitled to the damages awarded her. The location of the re-surveyed highway covers no portion of her land except that which was within the original survey. It is presumed that she, or, her predecessors in title were paid for it at the time of the original taking. Is she entitled to pay for land which the public has once paid for ? Since the statute No. 27 Acts 1858, now sec. 3506 V. S. was passed no right in the highway could be gained by occupation or possession. I, for one, do not concede that such right could have been gained prior to the statute of 1858, by possession although adverse. The report does not show that the possession by the petitioner of the land included within the limits of the original survey, was adverse. Conceding that she could so acquire it, it does not appear that she had. But irrespective of the statute of limitations, a majority of the court hold that under s. 3924 V. S. if the land owner has been in possession of lands within the limits of a highway for fifteen years, that his fences and buildings erected and continued thereon for that length of time, shall not be removed nor the lands enclosed again taken for the highway without compensation. That, twice paying for land taken fon highway purposes, is in the nature of a penalty imposed upon a town for their non-action in permitting one to occupy the public highway for so long a time. Under this view of the statute the petitioner Laura F. is entitled to the damages awarded her and the

Judgment is affirmed.