Shelton v. Town of Derby

Waldo, J. No exception is taken to the proceedings in this case previous to the appointment of the committee to hear and decide the matters contained in the application. The application is in the usual form, the proper party is made respondent, and legal notice of the pendency of the application is given. The parties then before the court were the petitioner on the one part, and the town of Derby on the other. The record shows that they did not agree upon the judgment that should be rendered, and the application was by the court referred to a committee. In such cases the statute requires the court, not only to order and direct when and where the hearing before the committee is to be had, but also to prescribe the notice of the hearing to be given to those interested in the pending application. In this case the court did, in its order, prescribe the time and place of hearing by the committee, and in relation to notice the order proceeds as follows “As to'the time and place of hearing, the parties being in court, shall take notice of this order, and such notice shall be sufficient notice.” In this order the court only gives notice to the parties then in court. In this stage of the proceeding the parties required to be in court are only the petitioner and [421] the respondent. But other persons are interested in applications of this character. There are those whose lands maybe taken for the highway, and those whose interests may be injuriously affected by the laying out of the contemplated road. The statute does not contemplate any notice to this class of persons until the application is referred to a committee, and before that they are in no sense parties to the proceeding. But when the application is referred to a committee the court is required to prescribe the notice to be given, not to the parties then in court, but to those interested in the pending application. If the legislature did not intend that notice should be given to any but the parties in court, why have they used language indicating a distinction between “parties” and “those interested?” The parties may agree as to the judgment that shall be rendered, but in case a hearing is to be had before a committee, then the statute provides for a notice to those interested. . Again in section 25th of the same statute, provision is made for the appearance before the court of “ all parties interested in or affected by the laying out of such highway, to remonstrate against the report of the committee for irregular or improper conduct.” Now if the parties only were intended and included, why make any provision for their appearance? The parties are before the court from the commencement of the process. It is evident the legislature contemplated that other persons than the parties to the original proceeding should be before the committee, and heard upon the questions to be “by them determined; and hence the reason for the provision that notice shall be given to those interested in the application. The hearing on the preliminary questions by the court is confined to the parties to the record; but upon the question of common convenience and necessity, to be heard only by the committee, a wider range is contemplated, and others than the parties to the record may be heard. These are embraced in the term “those interested therein,” which includes all who may be affected by the contemplated highway, and all whose interests may be adverse to those of the town on the question of damages. The statute provides that the court shall prescribe [422] the notice to be given to these persons, but it does not indicate what the notice shall be. That some notice must be given is not questioned, but the particular form of notice is left to the sound discretion of the court in each particular case. In the case under consideration no notice of the time and place of the meeting of the committee was given to any but the parties to the record. The persons whose land is to be taken for the use of the public had no notice of the proceedings that were to affect their interests. The right of the public to take their land for this purpose is in derogation of the natural rights of persons, and is regulated by statute, and the provisions of the statute must be strictly followed. That statute, as we have shown, provides that notice shall be given to this class of persons, which, in this case, has not been done; consequently there is an error in this respect that vitiates these proceedings. Can this defect in these proceedings be assigned as a cause of remonstrance against the report of the committee ? The statute provides that all persons interested in or affected by the laying out or altering of a highway may appear before the court and remonstrate against the acceptance of the report of the committee for any irregular or improper conduct. It is claimed by the defendant in error that this defect is not the fault of the committee, but the fault of the court, and consequently can not be a cause of remonstrance for irregular or improper conduct on the part of the committee. It is true that this was primarily an error of the court, but this error took from the committee their jurisdiction. The committee can proceed to hear and decide the matters contained in the application upon notice being given to those interested therein, but if no such notice be given they have no authority to act. In a case where the court had ordered a notice to the persons interested, if a committee should proceed to a hearing when the prescribed notice had not been given, their conduct would unquestionably be irregular and improper; for such a trial would be ex parte, and might be prejudicial to persons who would have had.no opportunity to be heard. And if a committee should proceed to a hearing when no [423] notice could be given to those interested, because none is prescribed by the court, the effect of such hearing would be equally prejudicial to persons interested, equally ex parle,and equally irregular and improper. If therefore the committee proceed to a hearing in any case without notice to the persons interested, they do it without any authority, and their conduct is, as to that proceeding, irregular and improper. Besides, if the court erred in omitting to order the required notice, it is for the interest of all parties to have the error corrected at the earliest practicable stage of the proceedings. This would be when the report of the committee was returned to court, and when all parties in interest have aright to appear. If the report be then set aside for this cause, the committee may be reappointed, the proper notice prescribed, and much time and expense saved. We therefore regard it as not only a matter of right, but also of expediency, to take advantage of this defect in a remonstrance against the report of the committee. The defendant in error insists that these remonstrants have no interest in the land affected by the laying out of this highway; and as they are not inhabitants of the town of Derby they have no right to appear in this proceeding. The record shows that the land over which the highway is laid belongs to the estate of Anson G. Phelps, deceased. It is admitted that Mrs. Stokes, one of the remonstrants, is one of the residuary legatees of said Phelps, and an heir at law to his estate, and the wife of the other remonstrant. It is therefore apparent that the remonstrants have an interest in the land in question, and may be affected by the laying out of this highway. The extent and value of this interest may not be very great, but we can not say they have no interest, or that they are not affected by this proceeding. It is further insisted that if the remonstrants have a right to appear, yet they should not have been permitted to remonstrate against the acceptance of the report of the committee without first having given a bond to indemnify the town of Derby from all costs which might arise from their appearance. The statute that has suggested this objection provides that [424] “whenever in any action against a community, an individual member of such community shall appear to defend against the action, he shall procure bond with surety to the acceptance of the court in which the action is pending, to indemnify and save harmless such community from all costs which may arise by reason of such appearance.” Rev. Stat., (comp. 1854,) p. 65. This statute requires a bond to be given when an individual member of a community appears to defend against an action brought against such community. In this case the remonstrants do not appear for any such purpose, but for the purpose of defending their own rights and interests. They did not appear in the first instance to defend in the name of the town of Derby, and they could not have done so, for it is admitted they are not members of that community. But they appear by authority of that provision of the statute relating to highways that provides that all persons interested in or affected by the laying out of a highway may appear, &e. For an appearance in this stage of the proceeding and for this purpose no bond is required. We are therefore of opinion that these remonstrants have a right to appear, and that there is manifest error in these proceedings. The other judges concurred in this opinion. Judgment reversed.