Pierce v. Town of Southbury

29 Conn. 490 | Conn. | 1861

Sanford, J.

This judgment is claimed to be erroneous because the committee have not found any allegation in the petition proved or true; because they do not find that the highway prayed for or any part of it will be, or that they are of opinion that it will be, of common convenience and necessity ; and because it does not appear that the highway laid out is the highway, or any part of the highway, prayed for in the petition.

We think that all of these objections to the judgment are unfounded. No claim is made that the allegations in the petition are insufficient to give the court jurisdiction, or to authorize the laying out of the highway, but it is said that all the material allegations must be found true in the mode pointed out by the statute; that the allegation of common convenience and necessity can be passed upon only by the committee, and must be found true by them.

It is true that no highway ought to be laid out unless the public convenience and necessity require it; and that whether the highway prayed for is so required or not, it is the peculiar province of the committee to determine. But we know of no authority, and we think there is no good reason? for holding that the finding of the committee must be shown by any precise and exact averments in their report. The identical language of the statute need not be employed ; other language of equivalent import will suffice; and indeed any language from which it is fairly to be inferred that in the opinion of the committee public convenience and necessity require the laying out of the road, is sufficient.

In Lockwood v. Gregory, 4 Day, 415, it was decided that a specific allegation of “ common convenience and necessity ” need not be made in the petition, and that it is sufficient if such facts are stated as to justify the inference of such convenience and necessity ; and that decision has been repeatedly approved of by this court. Windsor v. Field, 1 Conn., 279. Plainfield v. Parker, 11 Conn., 576. We think the rule of construction adopted in those cases should be applied in the case before us, and that the language of the finding in relation to a fact need not be more explicit or direct, than that which it is necessary to employ in the petition in alleging its existence. In the case at bar the committee say they had a full hearing, and viewed the proposed location for a highway; that public convenience and necessity do not require the laying of a new highway on a section specified, “ and are of opinion that that portion of said petition ought not to be granted; ” and as to the residue of the line described in the petition, they find that it “ ought to be laid out ” “ as prayed for in said petition,” and therefore they lay out a new highway commencing, &c. From this language it seems impossible to resist the conclusion that the committee intended unequivocally to express their opinion of the public wants in regard to that portion of the line over which they laid a road, as well as in relation to that over which they refused to lay one, and that the reason why, in their opinion, one portion of the way “ ought ” and the other “ ought not ” to be laid out, was the same — to wit, that the public necessity and convenience required the one, and did not require the other. Indeed the very terms employed by the committee in regard to that part of the highway which they laid out, involved the idea that in their opinion the public convenience and necessity required it, because otherwise there would be no legal justification for laying it, and it ought not to have been laid.

It is to be observed also, that the statute does not in terms require the committee to find the fact of public convenience and necessity as the basis of their proceedings, but only to form an opinion. Rev. Stat., tit.. 24, § 24. And that the evidence of the formation of such an opinion is embodied in the report of the committee with sufficient certainty and explicitness, we entertain no doubt. So the committee is required to make report to the court of their “ doings,” not of their opinions, except as those opinions are indicated by their acts.

We think also, that it does appear with sufficient certainty that the highway laid out was laid upon the line, and within the limits, specified in the petition. The committee say that the highway “ ought to be laid as prayed for in said petition, and therefore they lay out,” &c. And a comparison of the report with the petition in our judgment confirms this statement of the committee, that they laid out the road “ as prayed for.”

We have no doubt but that the record' ought to show, not only that the public convenience and necessity required the new highway, but also that the existence of such necessity in fact has been duly ascertained in the manner prescribed by law ; and also that the highway laid out is the one, or part of the one, prayed for in the application. But we think that these facts are found, and do appear in this record, with sufficient certainty and precision to uphold the judgment. And, no other defect in the record being shown, the judgment must be affirmed.

In this opinion the other judges concurred; except Hinman, J., who being disqualified by interest, did not sit.

Judgment affirmed.