52 Vt. 412 | Vt. | 1880
Section 19, c. 24, Gen. Sts., provides that any three or more freeholders desiring to have a highway in the town of their residence laid out, altered, or discontinued, may prefer their petition tc the selectmen, and thereupon the selectmen shall give notice to parties interested, and proceed to a hearing upon the merits of the petition. Section 20 directs the selectmen, after hearing and deciding upon the petition, to return the same with their doings in writing, stating the manner of notice and their decision, to the town clerk’s office, there to be kept on file. Section 44 provides that when application has been made to the selectmen as before provided (in section 19), and the selectmen shall refuse or neglect to lay out, alter, or, discontinue such high- • way, and in no other case, any three petitioners may apply to the County Court for the same purpose. Section 45 reads : “ The County Court on such application, if no sufficient cause be shown to the contrary ”, shall appoint commissioners, &c., to inquire into the merits of the petition, and if thought best grant the petition. It is thus seen that the County Court is given jurisdiction in this class of proceedings only when the selectmen upon application have refused or neglected to grant a petition in the same matter. Proof, therefore, of the former petition to the selectmen and of their neglect and refusal to grant the prayer thereof, must, at some stage of the proceedings, be made, if the fact be questioned. The return of their doings to the town clerk’s office by the selectmen, as required by section 20, would ordinarily demonstrate the right of the County Court to entertain an application. In this case the defendant filed a plea or answer, setting forth that the original petition addressed to the selectmen was in good faith under consideration at the time proceedings were instituted in the County Court, and that the selectmen had neither refused nor neglected to lay the highway. The petition addressed to the County Court alleges the making of the petition to the selectmen, and avers their refusal and neglect to grant it. The plea, therefore, presented the direct question of jurisdiction in the County Court to act at all in the premises, and, if true, was, in the language of section 45, a showing of sufficient cause why commis
Judgment reversed, and cause remanded.