Danforth W. Stiles vs. Town of Middlesex, 8 Vt. 436

The opinion of the court was delivered by Royce, J. The case which the defendants offered to make out, under their plea in offset, has been compared to the compulsory payment of a judgment at law, which is afterwards reversed or set aside. And as in that case the money paid may generally be recovered back in assumpsit, so, it is contended, may the sum now claimed in offset. But the analogy is evidently too imperfect to be relied upon. Here, was no reversal, either deciding the original subject matter- finally in favor of the plaintiff, or leaving it open for future decision.

The very act which is called a reversal settled the matter the same way as before, with some corrections. This was all that the plaintiff applied for. He did not seek to have the road abolished, but only altered in part; and that was done, leaving the whole road still upon his land. Nor is any thing gained in aid of the claim, by attempting to liken the present case to a contract rescinded by the parties. I shall therefore confine myself to the question of consideration. The payment sought to be recovered back was made in satisfaction of damages awarded to the plaintiff.

Those damages were assessed as the probable amount of injury to be occasioned by the public easement in his land. In-one respect, the just amount was incapable of any fixed and certain estimate, since the duration of the incumbrance could not be known. The road might be discontinued, and the easement thereby extinguished, whenever the competent authority should direct.

But as the damages awarded could not afterwards be increased, so neither should they be subject to diminution or apportionment, with reference to such an event.— They operated as a legal compensation to the plaintiff while the incumbrance should continue, be it for a longer or a shorter period. On such occasions, it is always supposed, however, that the injury will commence ; and therefore if the survey of a road is effectually abandoned before the road is opened or made, there can be no consideration for retaining the damages. In such case, they may undoubtedly be recovered back.

But the present is not such a case. The re-survey and alteration of a road, without removing it from the party’s land, is altogether a different affair from the absolute ^discontinuance and abandonment of such road. Nor does the si~ of the last committee on the subject of damages furnish any certain inference that the altered road was in no degree injurious to the plaintiff. It receives a more probable explanation from the fact, that damages had already been paid. At all events, the equitable right of the plaintiff to retain these damages, is not disproved by the facts offered to be shown.

And as he received them upon a just and legal consideration, that ground should be satisfactorily removed, before the claim in offset can be supported. The evidence was properly rejected. Judgment of county court affirmed.