12 Conn. 464 | Conn. | 1838
The plaintiffs except to the ruling of the judge at the circuit, on several points, which appear on the motion.
1. That the justice {Camp) had power to appoint the appraisers, notwithstanding he was an inhabitant and resident of the town of Sharon, and owned property which was legally taxable, and actually taxed there. It was urged, that as the town was liable to pay the damages assessed by the appraisers, {Stat. tit. 48. s. 11. p. 268.) he was disqualified by the statute {tit. 21. s. 38. p. 148.) which enacts, that “whenever there shall be so near a relationship between any judge or justice of the peace, and any party in a civil action, as between father and son, by nature or marriage, brother and brother in like manner, uncle and nephew in like manner, landlord and tenant; or whenever any judge or justice may be liable, in any manner, to contribute, out of his estate, to the damagesj cost or expenses of any action ; or whenever he may receive a direct pecuniary benefit, by the determination thereof; in all such actions, the said judge or justice shall be disqualified to aet as judge or render judgment.” Independent of the practice, which we believe to have been general in this state, sanctioning the act of the justice in this case, and without relying on the words of the former statute, which authorizes the appointment by “ a justic^of the peace,” it is a sufficient answer to this exception, that this court have repeatedly held,
2. That reasonable notice, (if any notice was necessary) was given to Bennett, residing in the state, of New- York, over whose land the highway was laid, that the select-men would proceed to examine, and if needful, lay-out the same. The exception taken to this opinion of the judge, admits of distinct answers. The statute, (tit. 48. s. 11. p. 268.) enacts, that “the select-men of the respective towns, or the major part of them, may lay out such public highways or private ways, as they shall judge needful, within their respective towns ; first giving rsasonable notice to the owners of the land through which the same are to be laid out, or leaving such notice at their place of abode, if within this state, to be present, if they see cause, at the laying-out of such ways.” The select-men, in their report, state, that they “ gave notice, in writing, by mail, to Hiram Bennett, of Monticello, in the state of New- York, to be present at the laying-out of said way, and show reasons, if any, against the laying-out of said highway,” &c. It sufficiently appears^ that reasonable notice was given to Bennett. It was sent by post; and the statute prescribes no form of notice to inhabitants of other states ; nor does it authorize any court or judge to issue an order of notice. The select-men alone can give the notice, (if any is required,) and if it cannot be given in this mode, there must be actual notice given. Indeed, such is the claim now made by the plaintiffs. If it can be sustained, it is very apparent, that serious impediments may exist to the laying-out of highways by the select-men, and much unneces
But the statute makes no provision for any notice to nonresident owners, in a case like the present. The notice of which it speaks, is confined, in terms, to owners “ within this state.” And we can easily perceive why it was so limited. It was foreseen, that insuperable difficulties might arise from requiring notice to be given to all the owners. Their residence might be unknown; or they might reside where it would be impossible to give them notice, within any suitable time; and thus it might become impracticable to have a road laid out, however necessary and convenient it might be for the public. It was also well known, that in most, if not all cases, the nonresident owner would employ an agent to take care of his lands, to whom notice might be given ; and that the owner of the land would not be divested of the fee, by the laying-out of the highway, an easement only being created in it. These were, probably, some of the reasons which induced the legislature to confine the notice to owners within this state ; but whatever the reasons may have been, it is obvious they have so limited it; and as neither the legislature have required notice to be given to non-resident owners, nor any practice with which we are acquainted, sanctioned it, we do not feel any disposition, had we the power, now for the first time, to require it.
3. That it was unnecessary to give notice of the time and place when and where the appraisers would be appointed, and when they would meet to discharge the duties imposed on them. The opinion of the judge on this point, was correct. Such notice is not demanded, by any law or practice known to us; and we perceive no good reason why it should be required.
We have been referred to the cases of The Corporation of New-York, v. Manhattan Company, 1 Caines’ Rep. 507. and Owners of grounds, &c. v. Mayor, &c. of Albany, 15
We have not thought it necessary to refer to the facts appearing on the motion, that the select-men and Bennett were unable to agree upon the amount of damages sustained by him, in consequence of the location of the highway over his lands, and that he availed himself of the statute provision to obtain a re-assessment of the damages, awarded by the freeholders appointed for that purpose, by the justice, and which were considerably increased. The opinions expressed by the judge who tried the cause, do not require the aid of these facts to sustain them. They have not, however, been overlooked by us ; and in a doubtful case, might be important to show, that some of the exceptions which were overruled, have no foundation in fact. It might be reasonably inferred, that Bennett was present, in person or by agent, at the laying-out of the highway, from the statement made by the select-men, that they and Bennett were imable to agree upon the amount of damages sustained by him. And his petition, with the proceedings of the county court thereon, show, that he obtained a larger sum as damages, than the amount originally awarded to him. We feel no disposition to aid him in any speculation under the colour of legal proceedings. It is probable this controversy would never have arisen, had the re-assessment of damages been satisfactory to him. Having availed himself of the remedy secured to him by law, he ought to be contented with it, and not be indulged in treating it as nugatory, or binding, as his interest or pleasure may prompt. This would be, in effect, to enable him to make use of the law securing him in his just rights ; and, after a fair and just determination of them, to allow him to yield obedience or not, as his own judgment might dictate.
We do not, however, wish to be understood as deciding this case upon these grounds. We consider it embraced by broader and more general principles, to which we have referred, in the opinion which has been expressed.
There is no ground on which this motion for a new trial can be sustained ; and it is, therefore, denied.
New trial not to be granted.