Moore v. Town of Chester

The opinion of the court was delivered by Wheeler, J. It is claimed that §44, of ch. 24, of the Gen. Stat., under which the proceeding in question was brought, refers [505] to §§41, 42, and 43, of that chapter, so that proceedings like this under §44, must be commenced as promptly as is required by §41. But the words, “ as before provided in this chapter,” in §44, refer to the sections which provide for application to the selectmen', and not to §41. The proceeding provided for in §41, is like an appeal from the decision of the selectmen laying the highway, and stays all proceedings until it is disposed of. Taft v. Pittsford, 28 Vt. 286. In that proceeding, the landowner is the appealing party, and he can decide at once whether he desires to appeal or not, and there was good reason for requiring him to proceed at once. The proceeding under §44 is different. It is necessary that application be made to the selectmen before it can be made to the county court, but it need not be made by the same persons. Application to the selectmen must be made by freeholders of the town. Secfion 19 of same chapter. But if the selectmen refuse or neglect to lay out, alter, or discontinue the road, application may be made to the county court by any three or more freeholders of the town or vicinity. The application to the selectmen is necessary to give the county court jurisdiction; but the application to the county court is not so much in the nature of an appeal, as the one under §41 is, nor as this would be, if it could be had only by the persons who had applied to the selectmen. The neglect or refusal of the selectmen might not be known as promptly to those who might wish to apply to the county court upon their failure to act, as their action would be to a landowner over whose land they had laid a road ; and when known to them, more time might be necessary for them to make their application in, than would be required for him to make his in. Those ^.re good reasons for requiring more prompt action in the appeal by the landowner, than in the proceeding under §44, and the proceedings are so different from each other that a fair construction of the statutes will not carry the provision as to when the application must be made along from §41 to §44. The county court found that the proceeding was commenced within a reasonable time after the refusal of the selectmen, and that makes it unnecessary to decide now as to what might be the effect of delay beyond a reasonable time. The only decision made upon this point is, that when brought within [506] a reasonable time it is in season, although not brought to the next term of the court, and more than twelve days intervene between the refusal of the selectmen and the next term. The petition did not ask for a highway to be laid out of the county of Windsor, nor the town of Chester, and was well enough in that respect. • The prayer of the petition to this court, as it stood originally, was not exactly proper, because it is asked that a writ of certiorari might issue, which is adapted to quashing the whole or some distinct part of erroneous or irregular proceedings, but not to requiring further proceedings. But a motion to amend in this respect having been made and granted, a writ of mandamus in the nature of a procediendo, directing the county court to entertain and proceed with the petition, is awarded.