Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 13

The desire of Dr. Hyde, to proceed in
haste, however strong or humane may
have been his motive, or important his
business, does not affect the case, or
the question of his exercise of ordinary
prudence on that occasion. His motive
or desire did not, and, from the nature
of the case, could not, increase his
power or ability to overcome the difficulties which existed in crossing the
stream. Whether those motives existed or not, the same disproportion existed between his power of resistance,
and the difficulties to be resisted and
overcome.37
Chief Judge Redfield sounded angry in his
dissent.
Strangers or travellers are not obliged
to consult the public records, or inquire into the history of building such
highways, before they are entitled to
use them. If suffered to remain open to
public use, the town are bound to see
that they are in a safe state for public use.38
Hyde v. Jamaica lived on as a precedent.
It was cited in dozens of cases, distinguishing and refining the concept of dedication and its relationship to acceptance, in
a town’s taking of land for highways and in
linking the insufficiency with the proximate
cause of the injury to hold towns liable. In
Berge v. State (2006), a case that held a
landowner’s access to his property by water did not defeat his claim for an easement
by necessity, Justice John Dooley commended the decision for its “affirming the
preeminent and constitutional standing of
real property.”39
In 1828, over Jamaica’s objections, county commissioners ordered the construction
and maintenance of the road from Jamaica to Wardsboro, which required building a
bridge over the West River, the costs borne
by Jamaica. Jamaica’s town representative introduced legislation in 1847 directwww.vtbar.org

ing towns benefitted by a bridge in another
town to pay a portion of the costs, as determined by the courts. In 1848, Jamaica
discontinued the road, after the bridge had
been taken out in a freshet (a nineteenth
century term for a flood caused by a spring
thaw) and laid out a new road over the same
course and bridge, in order to take advantage of the new law. Jamaica gave no notice to Wardsboro or Townshend. The two
towns sued. In Wardsboro and Townshend
v. Jamaica (1850), they attacked these acts
as fraudulent, an abuse of process. They
objected to having to pay for the bridge,
after commissioners ordered Wardsboro
to pay two-twelfths, and Townshend threetwelfths of the costs. Worse yet, the towns
claimed Jamaica had built the bridge “expensively.”40
Chief Judge Isaac Redfield wrote the decision of the Supreme Court, calling Jamaica’s actions a “finesse,” and acknowledging that the motive for the discontinuance and new highway layout was to force
the two towns to contribute. Some, wrote
Redfield, “would regard it shrewd, and the
more creditable for its very duplicity and indirection,” while others “might characterize it as evasive, sinister and perhaps fraudulent.” But personally,

Ruminations: The Legal History of Jamaica, Vermont

only by the length of the opinion, but the
fact that all three members of the Court
filed their own opinions, after the case had
been argued twice.

Judge Bennett blamed Dr. Hyde
for not exercising ordinary care, and he dismissed the argument that Dr. Hyde’s urgent
business attending a sick child could justify
his attempt to cross the river. “If the question of ordinary care is to be graduated according to the urgency of a man’s business,
the rule would be a very sliding one, and of
the most difficult application.”36
Judge Pierpoint Isham filed a concurring opinion, and Chief Judge Isaac Redfield sternly dissented. In his opinion, Isham wrote,

I must say, I think the affair more in
character with the labor-saving operations of modern inventions, than with
the old-fashioned, straight-forward,
hand-work of the generation now
passing off the stage, under the stigma of some, not very flattering or complimentary cognomens. It is not needful further to characterize the proceeding.41
If trying to convert “an equitable and imperfect demand into a legal right” is wrong,
wrote Redfield, then look at the legislature,
where in nearly every session special legislation is enacted. If the sole purpose of
such legislation was to affect the outcome
of cases in court, it would be unconstitutional and void, being more decree than
legislation. But as this law was written to
apply to any town, it was justified. Jamaica
prevailed. The towns must pay.
Eighteen years later, the war erupted
again. Where Jamaica had won compensation for the bridge, now its target was
the cost of maintaining the road. The Supreme Court ruled that a new highway was
largely of benefit to Wardsboro and Townshend, and granted Jamaica’s request for
compensation for keeping it in repair.42 The
following year, the case returned to the Supreme Court on appeal; the Court upheld
the trial court’s decision to require Wardsboro to contribute 40% of the cost of improving and maintaining the highway, but
freed Townshend from paying, given the
THE VERMONT BAR JOURNAL • SPRING 2014

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