Brock v. Town of Barnet , 57 Vt. 172 ( 1884 )

The opinion of the court was delivered by

Rowell, J.

If the selectmen had authority to lay this road in the first instance for the convenience of a single individual, the commissioners think it ought not to be discontinued.

We shall not enter into an extended discussion of this question, for upon the facts reported we think we cannot say that this was a taking of private property for private use without the consent of the owner, as is contended.

Though the way was laid out for Garrick's special convenience, yet it is a public way, and Carrick has no right in it nor control over it except in common with the rest of the public, and the easement therein is exactly the same that it is in all other ways laid out by public authority.

It is objected that the public can have no beneficial use of this way because it leads to nowhere from the highway with which it intersects, but stops at Oarrick’s farm line, fifty-four rods from his farm buildings. But pent roads are frequently laid only to the land of the persons to be specially accommodated thereby, while they construct connecting ways across their own land, and thus secure the needed outlets; and we think that the laid-out portions of such ways are a part that towns may lawfully supply without supplying the whole way.

The petitioners rely on Waddell’s Appeal, 84 Pa. St. 90. But that was a case of a mere private way, not connected with any public way, laid under a statute purporting to authorize the laying of private ways; and the court held the act unconstitutional. There are such cases in many of the States, arising under similar statutes; but they are not in point. Denham v. County Commissioners, 108 Mass. 202; Paine v. Leicester, 22 Vt. 44; Loveland v. Berlin, 27 Vt. 713.

That one of the three petitioners for the alteration of said highway was not a freeholder does not vitiate such alteration. The statute that three or more freeholders may petition to have a highway laid out, altered, or discontinued, was designed to afford a mode of compelling action by the selectmen; but they may act without a petition, or upon an improper one, and have their action good, for their action is the vital thing, however induced.

That Brock did not have sufficient notice in the respect complained of was dilatory matter; and when he appeared before the selectmen and objected to any action by them, but did not object for want of sufficient notice, he must be deemed to have waived that objection.

The holder of the mortgage has ample remedy for the enforcement of whatever rights he has under s. 2932, R. L. Slicer v. Hyde Park, 55 Vt. 481.

Judgments affirmed.