22 Conn. 226 | Conn. | 1852
We think the amendment of the petition,
allowed by the county court, in this case, did not change the ground of action, within the meaning of the statute “for the regulation of civil actions,” () 102;) and was, therefore, within the discretionary power of the county court. The effect of the amendment was not to change the general route or termini of the road prayed for, but only to change some of the intermediate objects mentioned in the application, as points to, or near, which it was proposed the road should be built. Both in the original and in the amended petition, a new road was asked for, from the same point in Chaplin, to or near the depot in Willimantic; and to obtain this was the general object of the petition. The intermediate points were mere incidents to this general object ; whether it would be proper for the road to strike one or more of them, did not depend so much upon the necessity of the road itself, between the termini, as upon a variety of other circumstances,—such as the nature of the ground, and the value of it, which would have an important bearing upon the expense of building the road,—so the probable accommodation it would give to the public travel to any intermediate village, or place between Chaplin and Willimantic, would be a proper circumstance to be considered. Undoubtedly these circumstances have an important bearing upon the question, as to the necessity for the new road, but they are rather incidental to the general object, which was, as we have said, to obtain a new road from Chaplin to the village of Willimantic; and, in applications of this sort, to tie up the parties and the commissioners, so as to make it necessary to strike every intermediate monument mentioned in the petition, without any possible relief, by amendment, or otherwise, would be vexatious in practice, and, we think, wholly unnecessary. It is claimed, however, that the amendment was allowed, at too late a stage of the proceeding, after the hearing before the commissioners. Hence, it is inferred, that the commissioners never viewed or examined
But, again, it is claimed, that, as the commissioners did not lay out the whole road prayed for, and, as what they did lay out, was not one continuous portion, extending into both the towns of Chaplin' and Windham, but, on the contrary, they laid out two separate and distinct parts of the road, and in such a manner that the southern or eastern portion was all of it in the town of Windham, therefore in regard to this portion of the road, the selectmen alone had jurisdiction, in the first instance, to lay-it out; on the ground, that it was not a road from town to town, or from place to place in different towns, which might be acted upon by the county court, in the first instance, without any previous application to the selectmen. This is not an objection to the jurisdiction of the county court, as the case was presented by the plaintiffs, in their petition. The petition asked for a new highway from Chaplin to the village of Willimantic, which was from “ town to town,” within the letter and meaning of the statute on this subject, and not from place to place, within the same town. Stat., 1849, pp. 422, 424. The county court, then, having jurisdiction of the application and the subject matter of it, were not, as we think, so bound by the application, that they must lay out the whole road, or dismiss the cause altogether. Such a construction of the statute would be unreasonable. Undoubtedly it must be a case where a road is wanted from town to town, in order to justify an application to the county court; and if it appeared here, that the road laid out, or either part of it, was not wanted, as a part of such road, that might be a ground on which the county court might dismiss the
It is to be borne in mind, that the original application here, was for a road from town to town. As such, it was referred to the commissioners, and, as such, they reported upon it, finding different parts of it necessary, and other parts not necessary.
For what reason some .portions of it are not required, the commissioners do not say, and, of course, it does not appear. It may be for a reason perfectly consistent with the fact, that the two parts are wanted, as connecting links in a road, such as was asked for from Chaplin to Willimantic,
We, therefore, advise the superior court, that there is no error in the judgment of the county court.
In this opinion, the other judges concurred.
Judgment affirmed.