Town of Winchester v. Hinsdale

13 Conn. 132 | Conn. | 1839

Sherman, J.

The only question now presented, is, whether the county court have erred in their proceedings since the former reversal. As this court decided, that the county court had no power to adopt a part of the road reported, and to . . .. , r - . .. . ject the residue, so much of their proceedings as were at van-anee with this rule, and no more, were annulled. It then be-1 1 • i , came their duty to begin de ?iovo at the point to which the former record was vacated. Where this point is, constitutes the question now submitted to the court.

The plaintiffs in error insist, that the county court, by rejecting a part of the road, found that part not to be of common convenience and necessity, and consequently, erred in accepting and approving the whole. It is not necessary to decide, whether a rejection of part of the road involves a sufficient finding of the fact that the part thus rejected was unnecessary ; for it was not competent for the county court to find that fact. It was not put in issue. A remonstrance denying the necessity of a part of the road only, would be bad on demurrer; for it would present to the court a question not within their cognizance. On a general remonstrance, putting the whole in issue, as in this case, it would be equally incompetent for the court to divide the question. The issue, by the statute, is indivisible ; and a finding, however formal, that a part only of the road is not of common convenience and necessity, would be erroneous, and within the judgment of reversal. The county court, therefore, in making the enquiry into the common convenience and necessity of the whole road, occupied no ground which was not laid open, by the decision of this court.

I would, therefore, advise the superior court, that there is no error in the judgment complained of.

In this opinion the other Judges concurred.

Judgment affirmed.