Leicester Emerson and Wife v. the Town of Reading, 14 Vt. 279

The opinion of the court was delivered by Royce, J. The bill of exceptions presents two questions for the consideration of this court. 1. Whether proceedings for the assessment and recovery of damages could legally be taken, before the selectmen had lodged for record, in the town clerk’s office, their certificate that the road was opened ; 2. whether the rights of these parties are concluded by the proceedings which were had, and the final order of payment made by the justice, inasmuch as they have never been set aside or vacated. The cases of Patchin v. Morrison, 3 Vt. R. 590, and Warren v. Bunnell, 11 Vt. R. 600, have fully determined, that the lodging the certificate is

an act essential to consummate the opening of the road, at least so far as the landowner is concerned. In both these cases it was decided, that, until the certificate was lodged for record, the owner of the land might lawfully fence in the road, and support trespass for an entry upon the land, for any purpose but that of making the road. And it would be unreasonable to "indulge him with an option to treat the road as opened before the certificate is lodged, when no one else can have that option against him.

And although the statute has inflicted no penalty upon the selectmen for neglecting to lodge their certificate for record, yet the landowner may generally coerce them to a compliance with the statute, by interdicting the use of the road. Should this fail, they would doubtless subject themselves to punishment, at common law, for wilfully disregarding an official duty.

It is of no importance whether we treat this act of the selectmen as only admissible evidence, against the landowner, that the road is opened, as it seems to have been viewed in- the former case, above cited, or as a legal requisite in the act of opening the road, as it was evidently regarded in the latter case. The statute has fixed the period of sixty days next after the road is opened, as the time in which the owner of the land is authorized to resort to the measures pointed out for enforcing payment of his damages.

And hence it was well remarked by Collamer, J., in the case last cited, thatc our statute gives to the owners 1 of land over which a road is laid, damages, only when the ‘ road is opened in the manner above described.’ Now the present case expressly finds, that when the proceedings of these plaintiffs were instituted, no such certificate had been lodged for record. It might, therefore, result that at that time the right to damages had not become perfected, and the proceedings were prematurely commenced.

It should be remarked, in reference to the second question, that the defendants, though seasonably notified, do not appear to have attended at any stage of these proceedings, or in any manner to have assented thereto. Neither had the magistrate or committee any general and abiding jurisdiction of such a subject matter. The powers which they exercised are conferred only in a given case, and within a given period of time ; and, though partaking in some measure of a judicial character, they are altogether out of the course of common law.

And according to the general principle which governs the exercise of special and extraordinary powers under a statute, the proceeding is deemed to be authorized in the particular case contemplated and described by the statute, but unauthorized, and therefore void, in all other cases. This short view of the subject is sufficient to dispose of this branch of the case. If the right to damages had not accrued, nor the event happened which alone could justify a resort to the proceedings in question, they can be of no avail as the basis of the present action. Judgment of county court reversed.