Summary
Petition for the discontinuance of a highway. Heard on commissioner’s report, December Term, Caledonia County, Ross, J., presiding. Report accepted, and petition dismissed.
It appeared that in March, 1877, William Carrick and three others petitioned the selectmen to lay out the way in question, and that in a short time it was laid out.
The following is a description, in part, of the way established:
“ Said right of 'way is to be one rod wide, eight feet three inches on each side of the above described course, subject to bars at both ends; and not to be used as a right of way in spring after the ground is in suitable condition to receive a crop, and to remain inaccessible as such until after the crop is harvested.”
On December 27, 1879, the said Carrick and two others petitioned the selectmen to change the survey and location of the said way. On the 29th of the same month there was a hearing by the selectmen as to this petition, and the request of the petitioners was granted; and the way was ordered to be opened on the 30th day of the same month; and said Brock was notified to remove his obstruction on that day. There were two petitions, — one signed by said Brock, and one by said Brock and three others, praying for the discontinuance of the said way. The commissioners reported, in part:
‘ ‘ That the road in question extends from the southwest corner of Carrick’s farm, across Brock’s field to a barway upon the highway leading past Brock’s house; that the said road in controversy does not extend easterly beyond the division line between said farms, and does not at its easterly terminus connect with any public highway; and said easterly terminus is fifty-four rods from Carrick’s farm buildings; that Carrick in going from his house to his wood lot and pasture by public highway, and not over the road in controversy, goes to the Centre meeting-house, and. thence past Brock’s house and said barway; and by this route the distance from said Carrick’s house to said barway is four hundred and forty-seven and one-third rods, over a hilly road; that Oarrick in going to his wood lot and pasture by the road in controversy, goes fifty-four rods across his own field and then thirty-one rods over said road in controversy to said barway, and the surface is comparatively smooth, and there is not much hill or grade, thus by this route saving one mile forty-two and one-third rods in distance, and getting a better road; that Oarrick hauls his wood from and makes his sugar upon said wood lot; that Oarrick is the only person who travels and uses said road in controversy to any extent, and he uses it only in going to and from said wood lot and pasture; that he has purchased said wood lot and pasture since he has resided on his said farm and before said road in controversy was laid out; that said road in controversy was laid out for his individual convenience, and he advanced to the town of Bax-net the sum awarded Brock for laxad damages, which sum was tendered to, but has xxever beexi received by, said Brock.
“We find that Gilmaxx, who signed the original petitioxx upoxi which the selectmexx altered the road in controversy, was not, when he sigxied the petitioxx axxd when the alteration was made, a freeholder ixi the towxi of Barxiet; that the written notice upon the hearing of that petitioxx oxi December 29, 1879, was delivered to Lucius Bx-ock on December 27, 1879, and a vex-bal notice was given to him by oxie of the selectmen oxi December 28, 1879; that he received no other xxotice of said hearing; that at the tixne of hearing, Brock forbade axxy actioxi about said road in controversy, but took no other part ih that hearing; that whexi said road was altered the time fixed for vacating the laxxd was xiot fixed with Brock’s consent. The only obstruction was a single length of fence across a culvert. * * * *
“We further find that in 1878 the petitioner brought a petition for the discontixxuaxxce of this same road; that the selectmen refused to discontinue it; that he then petitioxied the County Court for the appointment of commissionex-s, who were appoixxted, examined the road, heard the parties, and reported to the court that the road ought xxot to be discontinued; the report was accepted, the petitioxx dismissed, the cause passed to Supreme Court, and judgment there affirmed, but without any hearing.”
It also appeared that the land, over which the way was laid, was mortgaged; that the' mortgage had been assigned, and no record of the assignment had been made, but one of the selectmen who made the alteration knew that the assignee was the owner of the mortgage, and that no notice was given to the assignee.
The property of one cannot be taken .for the mere convenience of another. R. L. ss. 2913, 2914, 2923; Const. Yt. c. 1, Arts, 1, 2; Cool. Con. Lim. 530; Ang. High. s. 87; Tyler v. Beadier, 44 Yt. 648. The State has not constitutional power to take Brock’s land for the individual convenience of Car-rick. Const. Yt. supra j Cool. Con. Lim. supra ■ Waddell's Appeal, 84 Pa. St. 90. Public revenue cannot be appropriated to maintain the road. Cool. Tax. 67; Hill. Tax. 17. Brock cannot prevent the use of the way except by getting it discontinued. Brown v. Brown, 50 N. H. 538; Haynes v. Lassell, 29 Yt. • 157. The former proceedings are no bar. R. L. s. 2945; Ferguson v. Sheffield, 52 Yt. 77; Crawford v. Rutland, lb. 412. The notice was not sufficient. R. L. ss. 2922, 3041; Woodhouse v. Burlington, 47 Yt. 300; Haynes v. Lassell, supra. The mortgagee should have had notice. R. L. s. 2922.
The highway was properly laid by the first board of selectmen. It was and is open to all who choose to travel it at the seasons of the year when it is a highway. That one person has occasion to use it more than all others is immaterial. The tests as to whether a taking of private property is for public use, or not, are not how many in point of fact do use the alleged public works; but, is it of the character known as public, is it open to the public use, is it under the control of the public, is it similar in character and purpose to conceded public uses? One man who lives at a distance from any public road, is entitled to have a public road to his house, open to all who choose to travel it, because he pays his share of the tax to build and maintain other highways.
Selectmen can lay out pent roads for the benefit of a single family. Whitingham v. Bowen, 22 Vt. 317; Paine v. Leicester, lb. 45; Armington v. Barnet, 15 Vt. 749; Tyler v. Beacher, 44 Vt. 648; Denham v. Co. Commissioners, 108 Mass. 202; Proctor v. Andover, 42 N. H. 348; 77 Pa. St. 39; Allen v. Stevens, 29 N. J. L. 509; Mt. Wash. Boacl Co. 35 N. H. 134. It was not necessary to give notice to the mortgagee. R. L. s. 2932; Slicer v. Hyde Park, 55 Vt. 481. No petition was required; an insufficient one could do no harm. R. L. s. 2914. The former judgment ought to be a bar. Ferguson v. Sheffield, 52 Vt. 77; 31 Conn. 603.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
