Ives v. Town of East Haven

48 Conn. 272 | Conn. | 1880

Park, C. J.

One of the numerous questions made in this case is in regard to the mode by which the proceedings came into court. The statute of 1866 in regard to the laying out of highways by the Superior Court provides that the citation “ shall be served upon one or more of the selectmen of the town within which such highway is, to appear if they see cause,” &c. No such service was made in this case, but two of the five selectmen of the town of East Haven waived the Service of the citation, in a writing to that effect upon the petition, at a time when but eleven days could intervene before the sitting of the court to which the petition was made returnable, while the statute requires that a citation be served twelve days before the session. It further appears that during the term of the court to which the petition was made returnable, Charles A. Bray, who had been duly appointed special town agent “ to attend to all suits brought against the town,” agreed in writing with the petitioner that the court at that term might appoint a committee in the case, and that a committee was accordingly appointed, who subsequently heard the case, and made their report, which report is the subject of the present controversy.

In these circumstances the question is, was the town so in court that it is bound by the proceedings ?

We do not deem it necessary to determine whether the action of the selectmen in waiving service of the petition bound the town. We can however see no good reason why highway proceedings against towns should be an exception to the general rule that parties entitled to have papers served upon them, either by reading or by a certified copy, may dispense with that formality if they choose. Time and expense are saved by so doing, without any detriment whatever resulting to the parties. But however this may be in a proceeding-like the present, we think it clear that the town appeared in the case, through its authorized special agent, when he made the agreement with the petitioner for the appointment of a committee in the case. And, after a long and expensive trial had been had before the committee, in which the town participated, and a report adverse to the parties remonstrating had been made, we think it was too late to go back of the action of the town in the premises, and complain of the mode by which the proceeding came into court. This could not be done in other cases, and we see no reason why it should be done here. Finch v. Ives, 22 Conn., 101; Bailey v. Town of Trumbull, 31 Conn., 581; Fowler v. Bishop, 32 Conn., 199; Post v. Williams, 33 Conn., 147; Woodruff v. Bacon, 34 Conn., 181.

Towns are required by statute to construct and maintain necessary highways within their limits unless otherwise provided, and although they are constructed for the general public, still this fact makes no difference in the mode of procedure when the Superior Court orders their construction. Towns are regarded as parties in highway cases as much as in others, and are as much bound by their admissions and waivers.

Chief Justice Butler,.in the case of Beardsley v. The Town of Washington, 39 Conn., 265, treats a case of this character as governed by the same rules and principles that are applicable to other cases, and held the town bound by a waiver arising from their conduct in that case, as we hold them bound here.

The objection we have considered cannot be taken advantage of by the land-owners along the line of the road. If the town was in court by a voluntary submission to its jurisdiction, it was in court for all purposes whatsoever, and as much so as it would have been if the citation had been regularly served. The land-owners were not parties to the case in the first instance, and could not be made parties till the proceeding was pending in court; and when it was so pending by the waiver of the town, it was too late for them-to make objection to a transaction that occurred before they were interested in the suit. It would be strange if such owners should be permitted to complain of want of service on the town, when the town itself, the only party respondent at the time, waived all objection to the want of service by its appearance and defence in the case. Besides, the case last cited held that such owners were themselves bound by a similar waiver growing out of their own conduct. The reasoning of that case applies with equal force to this.

It has been urged as another objection that the court did not issue an order of notice to be served on the parties particularly interested in the proceeding, and did not fix a time and place for the hearing before the committee, until a term subsequent to the one at which the committee was appointed. It is not pretended that the parties had not sufficient notice by the order to prepare their cases for trial, but the objection is placed upon the technical ground that such order of notice and such fixing of the time and place for the trial must he made at the same term of the court at which the committee was appointed. We see no reason in this objection. The court that made the appointment was the same court that made the order. Different terms cannot make it a different court, nor affect its right to act in the matter. Some terms are much longer than others. Suppbse the term of the court had continued from May till October; would the case have been any different ? We think not.

A further objection is made, that the committee improperly heard evidence on the question whether the selectmen of the town had neglected and refused to lay out the road before the petition was brought. The court subsequently found this fact in the case, which rendered the finding of the committee in this respect wholly immaterial. It could not have occasioned any detriment to the cause of the remonstrants. The case of Southington v. Clark, 13 Conn., 370, fully justifies the action of the court in this respect.

We think the bond of the petitioner was properly received in evidence by the committee. It described the way as correctly as it could have been done at the time it was executed, 'and though it does not state the sum for which the work will be done, yet as it binds the petitioner to make the road wholly at his own cost, a statement of the sum was not necessary. It conforms sufficiently to the statute, and obviously was binding on the parties to it.

It further appeal’s in the case that the committee made an alternative assessment of land damages and benefits to adjoining proprietors, and that for this cause the court re-committed the report in order that they might make their assessment definite and certain. No additional order of notice was made for the parties to appear before the committee and again be heard upon the question of damages and benefits, and no farther testimony was heard on the subject, but the committee made a supplemental report in which the damages and benefits were definitely determined from the evidence they had previously heard. This action of the court is made the basis of several grounds of complaint.

It is said, in tlic first place, that the court had no power to re-commit the report, because the statute confers no authority for the purpose; that if there was anything erroneous in the report the court should have rejected it entirely, and appointed another committee to hear the case de novo. But we think the case of Waterbury v. Darien, 9 Conn., 252, fully sustains the action of the court in this matter. Judge Williams says, in that case—“ But as the court must have had the power to re-commit the report, they must have had the power to re-commit it for a specified object.”

It is said in the second place, that if the court had the power to re-commit the report, still the respondents were entitled to a hearing de novo on the assessment of damages and benefits. But why were they so entitled? They had been fully heard on the subject with their witnesses and counsel, and presumably nothing new could be said. All the evidence that had been heard and all the considerations that had been presented, must have been fresh in the recollection of the triers, and all that was required was to change an indefinite to a definite finding of damages and benefits. We think the court committed no error in this respect.

But it is said that, if the court committed no error here, still the committee erred in making a supplemental report on the subject. It is said that they should have changed their first report in the particular required, so that the whole case might appear in one report, and should not have left it in two reports inconsistent with each other in respect to the assessments. There can be no doubt that the course claimed by the remonstrants could have been taken by the committee, and, perhaps, it would have been the better course; still both reports must be taken together, and when so considered, in connection with the order of the court, there is no real inconsistency. The supplemental report nullified the indefinite assessment of damages and benefits made in the first report, and became a substitute for that report and as the final report superseded it.

It further appears in the case that the legislature in 1878 amended the charter of the borough of Fair Haven East, and imposed upon the borough the burden of maintaining all highways within its limits. And, it is said that, although the borough had no interest in this proceeding till nearly four years after the report of the committee was made in the case, still, inasmuch as the highway in question is within the limits of the borough, and the borough will be required to maintain it if it should be established, the action of the legislature operated to defeat the suit. It is not easy to see how this was accomplished, or what effect the action of the legislature could have on the case. The committee had heard the parties, and had made their report a long time before the borough had become interested in the matter, and it could not therefore be said that the committee were guilty of any irregular or improper conduct in respect to the borough. How then could the court refuse to accept the report, when it was its duty to do so unless there had been irregular or improper conduct on the part of the committee ?

These femarks apply with equal force to the Rogers dedicated highway. At the time the case was heard before the committee the Rogers road had just been graded and dedicated to the public, but it was not then a highway, and there was no certainty that it ■ would ever become one, inasmuch as its existence as a highway depended upon the future action of the public in accepting it as such. It cannot be said, therefore, that the action of the committee was irregular in respect to that inchoate road, or that the court erred in accepting the report without reference to that road. The p.Ia.ím of the remonstrants would constitute the court the ultimate tribunal to determine in many cases whether or not it was necessary and expedient to lay out a proposed-highwayj when the statute declares that. “ no trial as to the necessity and expediency of laying out such highway shall be had before said court.” Gen. Statutes of 1866, p. 499. It is said that although the committee had decided from the facts existing at the time of the hearing that the highway prayed for was necessary and expedient, still other facts concerning the way, which came into existence after the hearing was had, taken in connection with the facts heard by the committee, rendered the proposed highway unnecessary and inexpedient, and that the courtd ought to have so decided and to have rejected the report on this ground. If this could be done, then, of course, a case of the opposite character would have required the rejection of the report, in order that-another committee might lay out the proposed highway; and so the court might be called upon in all cases to determine the necessity and expediency of the proposed way, should a considerable amount of time elapse-between the report of the committee and the hearing before the court upon its acceptance; which we think cannot be done.

It is further claimed, that the order of notice issued by the court was never technically served upon Rollin McNeil, one of the land-owners along the line of the proposed road. The order required that it should be served by leaving a certified copy in the hands of the several persons named therein, or that the copy should be left at their usual .place of abode. Rollin McNeil, one of the persons named in the order, was absent from his usual place of abode. He had gone with his family into the state of New York, and was there when the officer went to his dwelling-house to make service upon him. The officer found the place vacant, and was about to leave a certified copy of the order there, when he was informed by McNeil’s partner in business where McNeil was. The partner requested the officer tb leave the copy with him, and promised to forward it to McNeil. This was done, and McNeil received the copy the following day. And it is a fact in the case that he received the copy much sooner than he would have done had it been left at his usual place of abode. McNeil returned from New York in time amply sufficient to prepare his case for trial before the committee, but he chose not to appear before them. .These are the facts, and we think it clear that there is no merit in his claim. The whole object of giving notice to the parties in interest was accomplished in his case, and he has no cause to complain.

It is further claimed that the court erred in taxing costs against the town. Full costs were allowed the petitioner, except those for witnesses. The revision of 1866 allowed costs in highway cases, and so does the revision of 1875. But the session acts of 1875 so amended the revision of that ¡> year that no costs for attendance in court and for witnesses are now allowed in such cases. ' Acts of 1875, p. 63, sec. 2j There is error, therefore, in the decree of the court so far as it allows costs for the attendance of the petitioner in court, and to that extent the decree is reversed.

A few other questions are made in the case, hut they are not important enough for consideration.

There is no error in the decree, except as to the matter of costs.

In this opinion the other judges concurred.