Town of Londonderry v. Town of Peru

The opinion of the court was delivered by Royce, J. This was a petition for a writ of certiorari, to bring up the files and records remaining in the county court, in a proceeding in which D, L. Kent and others were petitioners, and the [428] towns of Peru, Dorset, Landgrove, and Londonderry were defendants. The object, purpose, and history of that proceeding, are stated in the petition, and the only evidence upon which the petitioner predicates his right to the writ, is contained therein. Counsel in argument have assumed the existence of ccrlain facts which are not alluded to in the petition, and about which there has been no evidence. Treating the petition as true in all particulars, what is the case made ? The report of the commissioners laying out and establishing the highway in question, was returned to the December term of Windham county court, 1868. The commissioners estimated the cost of making the road (exclusive of the damage to land-owners and the costs of the proceeding) at the sum of $4,000 ; and they also reported that, in their opinion, the town of Peru would be excessively burdened by defraying all the expense of said road, and that they deemed that the towns of Dorset and Landgrove, in Bennington county, and the town of Londonderry, in Windham county, would be specially benefited by said road; and did, therefore, apportion and' adjudge that the town of Dorset should pay one fifth of the expense of building said road (exclusive of land-damages and costs) ; the town of Landgrove seven fortieths ; the town of Londonderry one eighth ; and the town of Peru the remainder. The town of Londonderry excepted to the report of the commissioners, and the grounds of exception were: 1st. That that town would not be specially benefited by the building of the road. 2d. That the portion of the expense of building said road apportioned to said town, vras not just and reasonable. The report seems to have been accepted, and the case disposed of as to all the towns except Londonderry, at the December term of the court, 1868 ; and as to that town, final judgment was rendered against the town at the June term, 1871. In passing upon the question whether the writ should be awarded, the court will first inquire if any injusti.ee has been done to the petitioner. It is not claimed but that the court had jurisdiction of the- parties and of the subject-matter. The questions involved in the exceptions to the report being matters of [429] fact, wore within the exclusive jurisdiction of the commissioners and the county court, and the judgment of the county court must be regarded as conclusive upon those questions. Paine v. Leicester, 22 Vt. 44; Woodstock v. Gallup, 28 Vt. 587. Wo are not to assume that injustice has been done, but the burden of proof is upon the party applying for the writ to show that it has been done, and that it may be remedied if the writ is awarded. The writ is not dcmandable as a matter of strict legal right, for it is well settled that it rests in the discretion of the court to grant or refuse it. Lyman v. Burlington, 22 Vt. 131; Pomfret v. Hartford, 42 Vt. 134. It is claimed that the court erred in ordering execution to issue against Londonderry in sixty 'days, if the sum assessed against said town should not be paid. It is not stated in the petition whether the highway had been built at the time the order was made or not; but the presumption is that it had been, for if it had not, the court would not have' been justified in making an order for the payment of a specific sum. Until the highway had been built, it could not be ascertained what one eighth part of the expense of building it would amount to. The court having the means whereby it could legally fix the amount which the town should pay, and having fixed it, the town is thereby concluded,* and the amount having thus been rendered certain, it was competent for the court to order the ordinary process of execution to enforce its order. If the amount still remained in doubt, or subject to bo litigated, it would have been proper that the town of Peru should have sought its remedy by action, as was done in Brookline v. Westminster, 4 Vt. 224. But the order in this case had the conclusive, binding force of a judgment, and there are no such facts shown, as, in our judgment, would justify the awarding of the writ. Consequently, the petition is dismissed with costs.