Kelley v. Towns of Danby

The opinion of the court was delivered by Rbss, J. It is conceded that the highway asked for in the petition, is one, over the establishment of which the county court has original jurisdiction. It is claimed-that the highway established, is of a character which requires the petitioners to apply to the selectmen of the several towns for its establishment, before the county court can take jurisdiction of it; and for this reason, the county court did not have jurisdiction to lay and establish it. It has been repeatedly decided, that the failure of a party to establish his claim to the full amount required to confer jurisdiction upon the county court, will not defeat its jurisdiction, if the claim [510] honestly made by the party, was large enough to confer jurisdiction upon the court. We are not aware of any principle of law which renders this doctrine inapplicable to highway cases. If the petition asks for the establishment of a highway which is within the original jurisdiction of the county court, we think a failure by the petitioners to convince the commissioners that the public good requires the construction of the whole highway, will not defeat the jurisdiction of the court to establish so much of the highway asked for as it is found that the public good requires to be constructed, notwithstanding the highway established, if petitioned for alone, would have been of such a character that the petitioners must have applied to the selectmen of the town for its establishment, before they could lawfully come to the county court. This, we think, would be the law governing a case in which the establishment of the whole highway was honestly asked for by the petitioners. If the only object of the petitioners should be the establishment of a highway for which they must first apply to the selectmen of the town, the including in such petition a more extensive line of highway, mala fide, for the purpose of enabling them to bring the petition to the county court in the first instance, would be of no effect to confer jurisdiction. It would be like a fictitious claim in a plaintiff’s specification, which never aids in conferring jurisdiction upon a court. Jurisdiction- is never obtained by the fraud of a party. As no question is made of the good faith of the petitioners in preferring the petition, we think the judgment of the county court might be affirmed on the ground that the petition conferred jurisdiction upon the court. But we are not compelled to decide the case upon this ground. The highway established by the county court, commences at a northerly and southerly highway in-Wallingford, passes westerly about three-fourths of a mile, to another northerly and southerly highway, over which it passes 40 or 50 rods southerly, and somewhere in this distance crosses into Danby. It then passes westerly about two miles, where it strikes another old highway, over which it passes a short distance, and then crosses another northerly and southerly highway. It then passes north-westerly, quite a distance, through the fields, and crosses the line into Tinmouth, and then. [511] connects witli another northerly and southerly highway at its westerly terminus. The whole length of the highway established, is about 4£ miles, and forms, with the included pieces of old highways, a new, independent, and continuous highway, from the place of beginning to its termination. This makes it a highway “ extending into or through two or more towns in the same county,” within the meaning of § 52, ch. 24 of-Gen. Sts., the establishment of which is given to the county court. The fact that it crosses the line between two of the towns, on an old highway, can make no difference. When the new highway is established and built, the portions of the old highways incorporated into the new highway, became a part of it, as well as part of the old highways. The portion of the old highway taken, thus becomes a constituent link in two independent highways, and is so far a double highway, that though the selectmen of the town could discontinue it as a part of the old highway, such discontinuance would not operate to discontinue it as a part of the new highway. It would continue a part of the new highway, which the town would be bound to maintain as such, till it is properly discontinued by proceedings add) essed to the county court. The finding of the commissioners, and the adjudication of the court, are, that the public good requires the building of this highway, as a whole, that is, from terminus to terminus. If the petitioners had addressed separate petitions to the selectmen of the several towns, as the defendants claim they ought, for the establishment of that portion of the highway which is to be built new in each town, such petitions might be properly denied by the selectmen, on the ground that the public good did not require the construction of that portion of this new highway as an independent highway. The several separate pieces of new highway included in this highway, could be of very little use to the public, without the construction of every of them; nor would, the several pieces of new highway be of much avail, unless the several pieces of old highway had been included. We therefore conclude that the highway was within the original jurisdiction of the county court, both on the petition, and the highway established under it. Judgment affirmed.