Inhabitants of Windsor v. Field

1 Conn. 279 | Conn. | 1814

Edmond, J.

The first cause of error assigned is, That the petition of the petitioners is insufficient in law to warrant the county court in rendering final judgment in the cause ; that the superior court ought to have adjudged the same to be insufficient; and that the proceedings of the county court were erroneous.

It was decided by this Court, in the case of Lockwood v. Gregory, 4 Day’s Ca. 415. that in an application to the county court for a new highway, a specific allegation that the road prayed for would be of common convenience and necessity, is not necessary; that if the application state such facts as, if true, would induce the inference that such is the case, it is sufficient. Tested by this rule, there can be little doubt of the sufficiency of this petition. The application here states, that “ the present travelled road leading &c. is very circuitous, hilly and on bad ground.” Assume this as a fact, and the inference is fair, that a new highway “ is wanting.” It further states, that “ a road may be laid out leading from, &c. so as greatly to accommodate the public, with little expense to the town or injury to private property.” If this be so, that an alteration would be of “ common convenience” is with equal justice inferable.

2. It is assigned as cause of error, that by the record, it does not appear that the committee notified one or more of the select-men of the town of Suffield, and of the town of Windsor, or the owners of the land, and others concerned, of the time, place and occasion of their meeting in the manner which the statute directs.

The statute (Tit. 86. c. 1. s. 11.) directs the committee to give seasonable notice to one or more of the select-men of the town in which the highway is to be laid out; and also to set up a notification in writing on the sign-post in such town or towns at least twenty days before they enter on said service, thereby notifying the owners of the land and others concerned, of the time, place and occasion of their meeting. That such notice ought to be given, unless the concerned agree otherwise, will not admit of a doubt. Where notice in the manner prescribed is given, or other notice is accepted by all the parties, the statute requirement is substantially complied with, whether the fact of notice appears by the record or not. The form of the committee’s return in respect to their having given notice is not pointed out by the law. They are not bound, nor is it necessary they should be, to state in their report, in the precise words of the statute, that they gave the notice required. Sufficient is it, until the contrary is shewn, if from the tenor of their report the requirements of the statute appear with certainty to a common intent to have been fairly complied with. The committee after counting on their appointment by the court, in their report say, “ pursuant to said appointment, the agent from the town of Windsor, the petitioners and the proprietors of the land, being legally notified, on the first day of August 1812, we met, &c. but the petitioners not meeting us, we adjourned to the 31st of August.” From that time it appears another adjournment took place to the 14th of September, “when,” (say the committee in their report) “ being met by all concerned, after hearing such observations as they thought proper to make, on the 14th and 15th of September, we completed viewing, and laid out the high way as follows,” &c.

It further appears from the record in this case, that before the court “ the parties were fully heard as to the acceptance of the report;” and notwithstanding the parties had such a hearing, it does not appear from the record, that any exception was taken to the manner, or for the want of that notice which the law requires. From these facts, I apprehend, it may well be presumed, that all the parties concerned, and whose rights are affected by the judgment, had legal notice, or voluntarily waived all exception for insufficiency of the notice given. That one or more of the select-men of Suffield was not notified by the committee, was admitted in the argument. This can make no difference in the case. One or more of the select-men of the town or towns (only) in which the highway is to be laid out, is by law to be notified. No part of the road in this case appears to have been laid out on lands in Suffield. No judgment has been rendered against them. The interests of the towns of Windsor and Suffield are distinct and separate ; and the want of notice to Suffield (had it been necessary) is not a sufficient reason for the reversal of a judgment affecting the rights of Windsor alone.

3. It is assigned for error, That by the record it appears that the committee have not fixed any limits to the highway, or determined its breadth.

In the report of the committee, the place where the road shall commence, the courses and distances on each person’s land, with the names of the several owners of the soil where the road passes, and the quantity of land belonging to each subjected to the easement, are precisely given, together with the place where the road terminates. This description limits the length and breadth of the highway with sufficient certainty.

4. It is further assigned for cause of error, That it does not appear by the record that the county court inquired by a disinterested committee into the convenience or necessity of the highway, or that the same was found by the committee or court to be of common convenience and necessity. It is not necessary that the county court should enquire by a disinterested committee into the convenience and necessity of a new highway. The words of the statute are in the alternative, “ by a disinterested committee, or otherwise.” In the record, it is expressly stated, “ that the town of Suffield made default of appearance, and the town of Windsor appeared by their agent ; and “ the court having enquired into the facts stated in the petition, do find them to be true, and do adjudge the road proposed in said petition to be of common convenience and necessity.”

5. The plaintiffs in error further complain, that it appears by the record that in laying out the highway the committee have reserved rights and privileges to the owners of the land through which the same is laid.

The only right or privilege reserved by the committee, as appears by the record, is to Haskell and Dexter ; and that is only the right of altering and repairing their mill-dam and flue when necessary. The committee were bound by their oath to perform the service assigned them “ according to their best skill and judgment, with most convenience to the public, and least damage to private property.” If consistent with the public easement or right of way, therefore, and nothing appears to the contrary, the leaving Haskell and Dexter to enjoy the right of repairing their mill-dam and flue when necessary, without being chargeable in such case with erecting a nuisance, was not only warrantable, but a duty.

6. It is also assigned for error, That by the record it appears that the committee have assessed damages to other persons than the owners of the land through which the highway is laid out, and have neglected to assess damages to the owners of land over which they laid out the highway.

The committee are not restricted to the actual owners in the assessment of damages in every case. They are to estimate the damage done to any particular person. Their best skill and judgment are to be exercised. If, however, any person is aggrieved by the doings of the committee, either in laying out the highway, or estimating the damages, the proper remedy is by application to the county court before the report of the committee is accepted. (§ 12.)

For these reasons, I am of opinion that in the judgment complained of, there is nothing erroneous.

In this opinion the other Judges severally concurred.

Judgment affirmed.