the expenses of a bridge built by one, the com- tiff town into town G, and apportioned onemissioners cannot fix the specific sums to be fifteenth of the expense of making the road paid by the contributing towns, but should only through the plaintiff town to be paid by F, the settle and define the proportions. But where defendant town, when completed and opened the commissioners fixed upon the whole cost at for travel. The plaintiff had made a portion of a certain sum ($1,890), and awarded that the the road through its territory, which did not other towns should severally contribute certain benefit the defendant, when the court, on petispecific sums, ($600 and $150), and the county tion, discontinued the unconstructed part, withcourt determined the proportions as 600 and out any modification of the former judgment. -Held, that this was not an error of Held, that the defendant was not liable for any which the contributing towns could complain. part of the expense. Fairfax v. Fletcher, 47 Rockingham v. Westminster, 24 Vt. 288. (G. S. Vt. 326. 150 c. 24, s. 65.) 1890 76. In supreme court. A petition to the 69. Where the plaintiff town erected a supreme court for the laying of a highway was bridge, under an order of court by which the allowed to be amended after the coming in of defendant town was assessed a certain propor- the report of the commissioners, by inserting in tionate part of the expense ;--Held, that after the petition an averment that the petitioners notice to the selectmen and demand of payment, were "freeholders of the towns and vicinity," assumpsit lay against the defendant town for its although regarded as an indispensable averpart of the expense,-the amount determinable ment. This was done by consent of the petion trial. Brookline v. Westminster, 4 Vt. 224. tioners, and there was no appearance by the 19 Vt. 629. 24 Vt. 292. 45 Vt. 429. petitionees. Howe v. Jamaica, 19 Vt. 607. 70. After a highway has been built, so that 77. Proceedings in the county court, in rethe amount of that part of the expense of build-lation to laying out highways and appraising ing which was apportioned to a particular town the damages thereby occasioned, cannot be recan be ascertained, the county court may order vised in the supreme court on exceptions, but such town to pay a specific sum, representing only by certiorari. Adams v. Newfane, 8 Vt. such part apportioned, by a day fixed, and, on 271. Lyman v. Burlington, 22 Vt. 131. default, may issue an execution therefor. Lon-(Changed by stat. 1872, No. 38.) donderry v. Peru, 45 Vt. 424. 78. The questions how far the public good 71. Under G. S. c. 24, s. 65, past expenses or the necessity of individuals may require a in the erection of a bridge cannot be awarded road, and how many or how few persons may against a town in which such bridge is not live upon the road, or whether the road is laid to located, but only future expenditures. Pom- accommodate the land of one person only, are fret v. Hartford, 42 Vt. 134. all questions of fact upon which the discretion 72. Under this statute, the county court has of the county court is to be exercised, and canjurisdiction to appoint commissioners and com- not be revised by the supreme court, unless the pel towns benefitted by a road already laid out facts stated upon the record show that the and built, and lying in another town, to contri- county court could not, in point of law, render bute to the expense of maintaining and keeping the judgment they did. Paine v. Leicester, 22 such road in repair. Jamaica v. Wardsboro, 45 Vt. 44. Vt. 416. 79. If the facts reported by the commis73. The court of chancery will not interfere sioners were of the kind which warranted the to enjoin a proceeding in the county court dis-order of contribution, the decision of the court continuing and relaying a highway, upon the will not be reversed, there being no error in law. ground that it was procured by one town to Jamaica v. Wardsboro, 47 Vt. 451. enable that town to maintain a petition, under 80. Damages to land owner. The Conthe statute, against the other towns for aid in stitution, Part I, art. 2, provides that "whenmaintaining a bridge on such highway, although ever private property is taken for public use, that was the prevailing motive for the proceed- the owner ought to receive an equivalent in ing; and although such other towns had no money." By G. S. c. 24, s. 78, it is enacted notice of such proceedings until after their com- that, "In estimating the damages which may be pletion, and until service of the petition upon sustained by any person owning or interested them for assessments towards building the in lands, by reason of laying out or altering any bridge. Wardsboro v. Jamaica, 27 Vt. 470. highway, the benefits which such person may 74. The statute having made no provision receive thereby shall be taken into considerafor the appointment of a commissioner to ex- tion." Held, that the act was not repugnant to pend an assessment under G. S. c. 24, s. 65 ;- the constitution; that, to bring a case within Held, not to be error to refuse it. Jamaica v. this provision of the constitution, it should be Wardsboro, 47 Vt. 451. such a taking as divests the owner of all title to 75. The supreme court established a high-or control over the property taken, and be an way extending from town C through the plain- unqualified appropriation of it to the public; that it does not embrace the case of taking land the highway with the assent of the land owner, for a highway, which does not divest the owner unless he intended thereby to waive his claim of his title in fee, and in which the public for damages; nor a new appraisal of damages acquires only an easement. Thus, where the by the selectmen. Kent v. Wallingford, 42 Vt. county court accepted the report of road com- 651. Townshend v. Taft, Ib. 656. missioners that they had disallowed the claim 86. to turnpike company. In taking the of a land owner for damages occasioned by the franchise of a turnpike corporation for the purlaying of the highway, for the reason that the poses of a highway, under G. S. c. 24, s. 79, benefits resulting therefrom equalled any dam-where the turnpike lies in several towns, the ages to the land and the expense of fencing the value of the whole franchise should be apporsame;-Held, on certiorari, that there was no tioned among and against the several towns, error in the proceedings. Livermore v. Jamaica, according to the value of the portions lying in 23 Vt. 361. See Hatch v. Vt. Central R. Co., the respective towns. Taylor v. Rutland, 26 25 Vt. 65-6. Vt. 313. 81. In assessing damages, the value of the 87. Setting over old road. Under the land taken, the expense of fencing against the statute anthorizing turnpike commissioners to set road, and the damage done to the land remain- over the old road, if, in the opinion of the selecting, are the only matters proper to be taken men, it may be discontinued ;-Held, that such into consideration. An award including dam- opinion could not be shown by parol, but the ages for the discontinuance of a highway, and expression of such opinion must appear in the the expense of building a cross road on the record, or in writing. Fisher v. Beeker, Brayt. party's own land from his dwelling, in order to 75. 2 Aik. 397. reach the highway laid out, was held, in these respects, invalid. Dalrymple v. Whitingham, 26 Vt. 345. 82. It is error for road commissioners to award land damages against a town, on the laying out of a highway, without giving notice thereof to the town, so that it may appear and be heard on that subject. Thetford v. Kilburn, 36 Vt. 179. 88. A highway established before the act of Nov. 7, 1800, cannot, when subsequently discontinued, be legally set over, under sec. 2 of that act, to any other person than the owner of the soil. Pettibone v. Purdy, 7 Vt. 514. 89. Costs and execution. Under the statute of 1833, an execution was allowed to be issued by the county clerk against a town, upon a petition signed by part of the petitioners for 83. Where the proceedings are erroneous laying out a highway, for the amount assessed only in respect to the awarding of land dam-to the town by the road commissioners, and ages, the practice is not to quash the whole pro- costs, such execution requiring the money to ceedings upon certiorari, but only to remand be paid to the clerk. Hill v. Sunderland, 7 Vt. the case to the county court, to be sent out to 215. the commissioners to appraise the damages 90. The award and taxation of costs by a anew. Ib. road committee, under the act of 1828, created 84. In the laying out of a highway through a debt on which an action of debt lay, as upon lands of which the record title was in the estate a judgment. Shelburn v. Eldridge, 10 Vt. 123. of an intestate, where there had been no decree 91. Under a road petition, the increased of distribution to the heirs, nor division in expense of a second examination occasioned by severalty between them by deeds or occupation, the death of one of the committee and the but only a written agreement for such division; appointment of another in his place, was held -Held, that the payment of the land damages to be taxable in the costs against the towns was properly made to the administrator, and where the road was laid. Howard v. Colchester, that notice to him, as the representative of the 24 Vt. 644. estate, of the hearings before the commissioners was sufficient, and the heirs were bound by the proceedings. St. Albans v. Seymour, 41 Vt. 579. II. PENT ROADS. 92. All pent roads are public highways, 85. On the establishment of a highway, though called in the early statutes " private the order of the court for payment of land roads"; that is to say, they may be used by damages becomes a perfected judgment on all, but they are not open highways. Wolcott the expiration of the time fixed for payment, v. Whitcomb, 40 Vt. 40. on which the land owner is entitled to an exe- 93. From the laying of a road as a pent cution immediately (G. S. c. 24, s. 70); and, road, without any prescribed regulations as to before the enactment of G. S. c. 24, ss. 82, 83, gates and bars, it is implied that the owner of the discontinuance of the highway, before being the land may and he has the right to protect his built, did not affect the judgment; nor did the field and crops by suitable and proper gates loss of the right to build the highway by and bars, not interfering with the reasonable lapse of time; nor a change in the location of use of the road as a pent road. Ib. 94. Pent roads, like other highways, are 102. Case of sudden damage. Under G. required to be "opened" by the recording of S. c. 25, s. 18, providing that when on any exthe proper certificate; and the land owner is traordinary occasion any bridge or highway entitled to his damages, as in case of other shall be suddenly destroyed or impaired, &c., highways. Warren v. Bunnell, 11 Vt. 600. it shall be the duty of the surveyor forthwith to 95. Upon a petition for the laying of a high-cause such highway to be repaired, &c., it is way, a pent road may be laid. Whitingham v. implied that the surveyor first have knowledge Bowen, 22 Vt. 317. or notice that the road has been so injured as 96. A pent road is open to all who wish to to require repairs, or that he be in fault for not travel it, and the town is bound to keep it in having such knowledge or notice. Clark v. reasonable repair, taking into consideration the Corinth, 41 Vt. 449. character and importance of the road; and is liable for injuries caused by its insufficiency. Loveland v. Berlin, 27 Vt. 713. III. DISCONTINUANCE. 97. In petitions to discontinue roads laid out by committees of the supreme court, the practice is to appoint the same committee that laid out the road. Livingston v. Jericho, 11 Vt. 96. (Changed by G. S. c. 24, s. 73.) 98. Selectmen cannot discontinue a road laid by the road commissioners, or by a committee appointed by the Legislature, or by the supreme or county court. State v. Shrewsbury, 8 Vt. 223. (1836.) 99. A highway may be discontinued without notice to the land-owners. Haynes v. Lassell, 29 Vt. 157; and see Bostwick, ex parte, 1 Aik. 216. 103. A charge in such case, that it was the duty of the surveyor, after such notice, to go immediately, as soon as practicable, about repairing the road, with such force as he could raise under the power given by the statute, with the force and means at his command and within his control; and if, by so doing, he could have put the road in a reasonably safe condition for travel before the plaintiff passed over it and was injured, and he failed to do so, this was the fault of the town, and the town was liable-other necessary facts being provedwas held correct. Ib. 104. The town must proceed with as much dispatch as the magnitude of the work under the existing circumstances,-as, the difficulty of procuring material, &c.,—will reasonably permit; but not utterly regardless of economy and of the town's interests, nor yet consulting its own convenience merely. Briggs v. Guilford, 8 Vt. 264. 100. The plaintiff promised to pay the defendant town $100, if the selectmen would lay 105. This statute must receive a reasonable and construct a certain road and discontinue construction, and where it is evident that an the old road passing through his land. The immediate attempt to repair the road would be selectmen laid the road and hired K to build it, fruitless, it would be unreasonable to require it. promising him, as part payment, the $100 sub- As bearing upon the question of the duty of the scribed by the plaintiff. After the new road surveyor;-Held, that it was competent to was built and accepted, the selectmen directed show the condition of the highway and the the plaintiff to pay K the $100, they promising nature and extent of the work required; as also to discontinue the old road. The plaintiff gave the number of miles of road which the town K his note therefor. The town afterwards was required to maintain, their condition, and neglecting and refusing to discontinue the old the population of the town. Spear v. Lowell, road running through the plaintiff's land;- 47 Vt. 692. Held, that he could recover of the town the 106. Duty towards adjoining land-own$100, as for money paid to its use; and this, er in making repairs, &c. In repairing a although there was an understanding between K highway, the town is bound to use reasonable and the plaintiff that K should not call on the care and prudence to guard against endangerplaintiff to pay the note, unless he should re-ing or injuring the lands or fences of the landcover of the town. Morrill v. Derby, 34 Vt. 440. owner upon the margin, but is not absolutely responsible for the results. For a failure in this respect, a special action on the case will lie, but not trespass. Baxter v. Winooski T. Co., 22 Vt. 114. Felch v. Gilman, 22 Vt. 38. IV. REPAIRS; HIGHWAY SURVEYOR. 101. General duty to repair. In replevin, the defendant avowed the taking, as surveyor, 107. The defendant, for the purpose of under a vote of the town to raise money to be widening a highway running along a side-hill expended upon "the Lake road." Replication, through the plaintiff's farm, and which was that there was no such "legally laid out Lake unsafe by reason of its narrowness, drew and road." The replication was held insufficient; dumped stone on the lower side of the road, for the town may be bound to keep the road in some of which rolled down against and through repair, though not legally laid out. Stoddard the plaintiff's side fence and into his field. The v. Gilman, 22 Vt. 568. widening of the road was necessary, and was done in a proper and reasonable manner, and selectmen; and for all necessary expenditures was approved by the highway surveyor. Held, made by him for this purpose, beyond the that the defendant was not liable therefor in means furnished him by the town, the town is trespass, nor (by Redfield, C. J.) in any action. liable to him. Stockwell v. Dummerston, 45 Morse v. Weymouth, 28 Vt. 824. Vt. 443. 108. As to water course. The corporate 115. Where a highway surveyor, having duty imposed by statute upon towns to build expended all the taxes in his rate bill upon cerand keep in repair their highways, requires of tain roads of his district, was directed by the them, upon principles applicable to the owners selectmen to repair another road, and the inof adjoining lands, that in building a highway habitants of the district upon his call refused to across a natural stream of water, they provide assist, whereupon he made the repairs at his some suitable and sufficient means for the own expense ;-Held, that he could recover the passage of the water, and maintain the same in amount of the town in an action of book acsuch condition that the stream shall not be ob-count. Gassett v. Andover, 21 Vt. 342. structed thereby, to the injury of persons own- 116. So, where a bridge and highway were ing lands adjoining; and for a failure in either impaired by a freshet so as to require immediof these respects the town is liable to the party ate repairs, and the highway surveyor, who injured. Haynes v. Burlington, 38 Vt. 350. had already expended all the taxes in his rate 109. Where the embankment of a highway bill, called upon the inhabitants of his district crossing a natural stream of water washed and to assist in the reparation, and they refused;slid down by the action of the elements, so as Held, that he might make such repairs at his to choke the culvert and prevent the passage of own expense, and recover the amount of the the water, to the injury of the adjoining land- town in an action of book account. (G. S. c. owner;-Held, that for neglect to remove the 25, s. 18.) Ib. obstruction, after reasonable notice, the town was liable in an action for damages. Ib. 117. Where the plaintiff, as highway surveyor under a void appointment, performed 110. A natural stream of water passed under services and made expenditures in needed rea highway by a culvert built by the town. A pairs of the highways in his supposed district; railroad company, upon their own land below, -Held, that in the absence of any contract built an embankment of earth, with an exten- aside from his relation of highway surveyor, sion of such culvert through it which fell to and without a subsequent express ratification decay, and the embankment thereby stopped of his acts, he could not recover of the town, the flow of the water and set it back upon the although he acted in good faith, and with the plaintiff's land on the other side of the highway. knowledge of the selectmen who appointed In an action against the town for neglect to re- him. Lamphire v. Windsor, 27 Vt. 544. move such obstruction after notice and request; 118. The selectmen, in a tax bill and war-Held, that the town was not liable. Ib. rant issued to a highway surveyor, described 111. Surveyor. After a demand and no- the road upon which the tax bill was to be tice by a highway surveyor for payment of a worked, but the same, though opened and used tax in labor, and neglect for three days, he may for public travel, had not been legally estabdistrain. Andrews v. Chase, 5 Vt. 409. lished. The surveyor in good faith worked the Ladd v. 112. The selectmen of a town already road, but was sued in trespass therefor by the divided into highway districts, for which sur-owner of the land and a recovery was had veyors of highways have been chosen by the against him. In an action by him against the town, have no authority thereafter, and during town for indemnity ;-Held, that under G. S. c. the year, to alter such districts so as to create a 84, s. 63, he was entitled to recover. new one, and appoint therefor an additional Waterbury, 34 Vt. 426. surveyor. Lamphire v. Windsor, 27 Vt. 544; nor to combine districts, and enlarge the juris diction of one of the surveyors. Scott v. Mount Tabor, 48 Vt. 391. 119. In order to make a highway surveyor liable as for neglect of duty, the limits and description of his district should be established, and indicated in the rate bill and warrant. Newbury v. Tenney, 2 Aik. 295. 27 Vt. 546. INDICTMENT for Not Building, or Re- 113. A highway surveyor is not an agent of the town to bind it by his declaration that a highway in his district is safe; but such declar- V. ation to a traveler bears upon the question of due care on his part in attempting to travel upon the highway. Clark v. Corinth, 41 Vt. 449. 120. Where a court of sessions, or any other 114. A highway surveyor is bound by stat- tribunal, is empowered to impose a duty on ute "to keep in repair at all times the highways any corporation or individual which affects or in his district." This duty is not limited by interests the public, a neglect to perform that the amount of the tax-bill put in his hands, nor duty subjects those neglecting to an indictment is its performance dependent on the will of the lat common law ;-as, where a town neglects to build a bridge ordered by road commissioners. of the bridge to and along the banks of the State v. Whitingham, 7 Vt. 390. river, and that the space between should be 121. In an indictment against a town for filled by the four towns as part of the expense not making and opening a highway laid out of building the bridge. This was done, and the and established, it is not necessary, in describ-wing walls and railings upon them had ever ing the highway, that the courses and distances been kept in repair by the four towns, but the of the survey should be stated; but it is suffi- road, including the space between the wing cient if the termini are given with reasonable cer- walls, had been kept in repair by the town of tainty, and the intermediate points or direction H, and the town of W, to which it was afterare so stated as to enable the court, from the wards annexed. Held, that such space between indictment itself, to issue a commission to the the wing walls was not bridge, but highway, agent to be appointed by the court to expend and that the town of W was answerable for its the fine which shall specify so particularly the insufficiency. Powers v. Woodstock, 38 Vt. location of the road, as that he may know 44. where to work it. State v. Newfane, 12 Vt. 127. Private way. A town is not liable 422. State v. Brookfield, 2 Vt. 548. (See State for an injury received upon a road, or way, v. Jericho, 40 Vt. 121, and G. S. c. 24, s. 18.) opened by individuals upon their own land for 122. On trial of an indictment against a their own benefit, unless recognized by the town for neglect to make and open a road laid by a committee of the court;-Held, that evidence offered that it was absolutely and physically impossible to make the road where laid, was properly rejected. State v. Brookfield. 123. After an indictment found against a town for not keeping in repair a highway, the discontinuance of such highway and the opening of a new one, cannot defeat the prosecution. State v. Fletcher, 13 Vt. 124. town as a public highway,-as, by doing labor upon it, or authorizing the highway tax to be expended upon it. There is no way in which an individual can, for his own benefit, lay out a highway and compel the town to adopt it as such. Page v. Weathersfield, 13 Vt. 424. 27 Vt. 454. 128. Extra viam. A traveler upon the highway turned out under an open tavern shed, and left his horse hitched there while he was 124. In 1831, a highway was laid out and attending to some business in the village. In worked on the line between Alburgh and Cana- getting his team to resume his journey, the da, that being the center line of the highway, horse was backed out of the shed over the bank and was traveled by the public until 1844, of a gulf, extending from the shed to the when the selectmen made a new survey, locat- traveled track of the highway, there being no ing the entire highway, three rods in width, in sufficient muniments along the bank, or the Alburgh, making the State line the north line margin of the highway. The shed and the of the highway. This road was afterwards place of the accident were without the limits used for public travel and highway taxes were of the highway. Held, that he could not reexpended on it, although no certificate had cover against the town for the injury. Sykes been deposited in the town clerk's office that v. Pawlet, 43 Vt. 446. the highway, as newly located, was opened for 129. Place without the State. A town travel. Held, that this was not the laying of a new road, but the widening of an existing one, and that an indictment lay for neglect to repair the road. State v. Alburgh, 23 Vt. 262. is not liable for damages occasioned by the insufficiency of a bridge, where the place of injury is beyond the terrritorial limits of the State, although the town has been accustomed to share in the expense of maintaining the bridge, and it lies partly in this State. Brown v. Fairhaven, 47 Vt. 386. 125. The statute which imposes a fine, recoverable by complaint before a justice, for placing any obstruction in á highway, is merely cumulative, and does not take away the remedy 130. Margins. The plaintiff, in a dark by indictment at common law. State v. Wilkin- night, was traveling upon a highway in the vilson, 2 Vt. 480. lage of Montpelier with a horse and sleigh. The ordinary traveled path was of sufficient VI. CIVIL LIABILITY OF TOWNS FOR INSUFFI-width, but was destitute of snow, and sleighs ΟΙΕΝΟΥ. had been driven in the ditch and had made a path there in the snow. In this ditch there was 126. Highway-Bridge. A bridge near a hole dug, three feet from the outer edge of the corner of four towns, and a highway lead- the ordinary traveled path, of which the highing across the same, but in the town of H, were way surveyor had been notified. The amount duly established and laid by a committee of the of travel upon this road was large. The plaintiff legislature, who apportioned the expense of the in traveling ran into this hole, whereby his horse bridge between the four towns, and directed and sleigh were damaged. In an action against the manner of building the bridge, requiring the town therefor;-Held, that the jury should wing walls to be extended from the abutments have been instructed, that if the plaintiff diverg |