Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1889-04-05

survey of 1928 as claimed by the state, the
respondent is guilty of a nuisance unless his
grantors acquired title by adverse posses
sion to the land he now occupies But il the
state has not made out the location of this
survey beyond a reasonable doubt in your
minds, then the evidence produced by the
respondent, tending to show that the
wrought part of the highway has always,
since 1928, been substantially where it now
is, that people have extended their front
yards planted trees, made sidewalks, built
this water tower and the dwelling houses
with reference to the highway as it now is,
should be considered by you as evidence
tending to show that the survey of 1928
was not in fact where the state claims it.
If you find the survey of 1928 as claimed
by the state, then the respondent has appro-
priated land that was laid out and opened
for the use of the public, and excluded the
public therefrom, and it is not defence for
him that the public did not, at the time of
the appropriation, actually travel thereon,
nor that the road is now more than three
rods wide opposite his houses. If man
should erect a building on the common in
front Of this court house, 1t would be no de
fence for him, on an indictment therefor
that his building was upon an obscure part
of the common not used 10y the public, nor
that the public had common enough re
naming. The exclusion of the public from
any part of the common would be anuisa
Some remarks have been made during
the trial about the town having abandoned
the land in controversy even if the last sur
vey covered it. instruct you that the law
OF abandonment is not applicable to this
case on account of anything that has oc-
CURED since the passage of the act of 1853
So if you should find that it was included
in the survey, but the public afterward
ceased to use 1t in consequence of the bank
caving away, or for any other cause, the
town is not thereby estopped from assert
ing its claim to the land in question
As to the law of adverse possession In
the year 1858 the legislature passed an act
providing that no person shall gain a right
or interest within the limits of highway,
by the possession and occupation of por-
tion of such highway therefore it is i'm
possible that Johnson's grantors should
have acquired any right to this land by ad-
verse possession since 1858. 1t must have
been acquired, if at all, by 10 years ad-
verse possession prior to that act. 1t ap-
pears that James Frost owned what has
lately been known as the Charler property,
including the cave bank, down to the year
ICDJ, WHtll he CbuNeNeu IL 10 Jut DuthHtTS.
If you find that said Frost occupied this
land as far north as Johnson's houses ex-
tend, continuously and under claim of
right for II years prior to the act of 1893,
then he acquired title by adverse possession
and that title has passed by the several
conveyances to the respondent In this
view the location of the fence at this point
during that period becomes important. You
have heard all the evidence bearing on this
subject and | have referred to it in another
connection. To establish a title in this
manner the fence must have been maintain
ed in substantially the same place For in
stance, if the fence in one year ran along
near the top of the bank in a certain place,
and five years afterwards in consequence
of the bank sliding off had to be moved
say five feet further north, ID years must
elapse from the time the fence was moved
to acquire title by adverse possession to the
land between the fences, The testimony
of Mr.. Eugene Frost and Mr.. Plummer be
comes important on this point, the former
tending to show that the fence was moved
from time to time to conform to the bank,
and at one time it ran down the hill to keep
the cattle off The testimony of Mr.. Plum
mer and other witnesses tends to show that
it was maintained substantially in the same
place. Your attention has been called to
the testimony of Mr.. Plummer that in 1861
or 80 Mr.. Samuel Knight, one of the Sc
ectmen, directed Mr.. Buckner's man where
to build fence on the top of the bank, and
the witness thinks it was about where the
fence had been before and has been since
not further north than the south side of the
sidewalk. While it would not be i'll the
power of selectman in that manner to
surrender any rights the public had, this
evidence would tend to show where Mr..
Knight then understood the south line of
the road to be.
These are all the propositions to which it
seems to me necessary to call your atten-
ton. am sure you have no other wish
than to render a right verdict in the case.
1t has been shown in evidence what Mr..
johnson paid for this land and what the
houses cost him, and that one of the houses
is his home sympathy for him should not
deter you from your duty. He built his
houses without making a survey of the
road, and the last one after he had received
the notice from the selectmen, which is in
evidence The consequences of your YER
dict to the respondent, if against him, should
cause you to weigh the evidence carefully,
and be satisfied that the southern boundary
of the highway is where the state claims it
to be, beyond a reasonable doubt.
In this case you will not return a written
but an oral verdict, and if it should be
against the respondent you should be pre-
pared to answer the court this question
How many feet do you find the houses are
in the highway AS l understand it, the
testimony of the state surveyors makes it
twelve feet, while the respondents survey.
ors deny that the houses are in the highway
at all. They are in fact about two and a
half feet from the south line of the side.
walk You will return such a verdict as
| YOU think the evidence warrants