Town of Torrington v. Nash

17 Conn. 197 | Conn. | 1845

Hinman, J.

It was decided, in the case of Waterbury v. Darien, 8 Conn. R. 162. and again in Treat v. Middletown, Id. 243. that in a petition to the county court for a highway, where the road asked for lies all in one town, an averment that the select-men of that town neglect and refuse to lay out such highway, is indispensable to give jurisdiction to the court. We do not find any such allegation in this petition. There is, indeed, an averment, that the said town have, at all times, refused and neglected, and still neglect and refuse, to lay out, open, and establish said route, though often requested, &c. But this, we think, is not sufficient. It is not the averment which was decided to be necessary, in the cases referred to ; nor do we think it is of the same import. It is said, however, that the select-men, in laying out highways, act as the mere agents of the town ; consequently, that their neglect is nothing more than the neglect of the town; and this averment, therefore, though not identical with that required by those cases, is yet tantamount to it, and is in fact the more proper averment to be made. To a certain extent, it is doubtless true, that the select-men act, in this business, as the agents of the town. The town is to bear the burden of building the road, and of paying the damages assessed to individuals; and its inhabitants, in common with the rest of the public, are to be accommodated by it. But all this does not make the town, in its corporate capacity, the proper body to lay out highways, nor the select-men the agents of the town, in the sense claimed by the defendants in error. They may more properly be said to be the agents of the law, by virtue of which they are empowered to appropriate private property to the public use ; and acting in this manner, by virtue of a statute, the course pointed out by the statute must be pur- • sued. We have no statute authorizing towns, as such, to lay out highways; but the select-men are constituted aa independent board, to which, in the first instance, application is to be made. Judge Peters, in remarking upon the statute upon this subject, says, “ the statute gives the select-men original, and the county court appellate, jurisdiction.” And in a case bearing a strong analogy to this, where a statute authorized the quarter sessions, upon application of the mayor, aldermen and commons, in common-council ass; mbfcJ, b\r means of a jury, to assess the value of certain lands, taken for a road, the court of King’s Bench held, that the order of quarter sessions was materially defective, because it stated, that the application was made by the mayor, commonalty and citizens, instead of the mayor, aldermen and commons, in common-council assembled : and Lord Mansfield, in his opinion, says, “ the one is a select body, and the other the corporation at large ; and we cannot go into any fact tending to reconcile such distinction, or to show, that in truth the latter are the proper persons ; but it ought to have been stated,” &c. Rex v. Croke, Cowp. 26. 29. See also 4 Hill 86. and cases there cited.

There are other difficulties in this case ; but as this is entirely decisive of it, we purposely avoid giving any opinion upon them. We are satisfied, that the petition is defective, in a part material to give jurisdiction to the county court; and the judgment upon it must, therefore, be reversed.

In this opinion the other Judges concurred, except Stoiirs, who was absent.

Judgment reversed.