Scutt v. Town of Southbury

Beardsley, J. This is an application to the Superior Court, pursuant to the provisions of the statute (Gen. Statutes, pp. 236, 237, secs. 29, 35), asking for a reversal of an order made by the selectmen of the town of Soutlibury, and approved by the town, discontinuing two highways. The plaintiff alleges that the highways are of common convenience and necessity, and of the greatest convenience and necessity to him as a means of access to Ms land and to market, and upon these grounds only asks for relief. The application was referred to a committee, pursuant to the statute, who reported that common convenience and necessity did not require that “ either of the roads should be reopened or maintained as a highway,” and concluded their report as follows: “ Both said highways.....should be and remain discontinued and closed.” [408] The plaintiff remonstrated against the acceptance of the report, upon the following grounds: 1. The land crossed by said highways belongs to the original proprietors of the town of Woodbury, and was never laid out by the town of Southbury, or its selectmen, to be used as highways. 2. Said highways were not highways of the town of South-bury, and could not be by it or its selectmen discontinued. 3. Said highways were laid out by the original proprietors of the town of Woodbury for public convenience, and the special convenience of access to their interior lands, and were, at the time the town and its selectmen attempted to discontinue them, in use for the particular purposes for which said proprietors had dedicated them. 4. The committee having come to the conclusion that said Muddy Brook road was of common convenience and necessity only to the plaintiff, his family, and a few neighbors, decided, by mistake of law on their own premises, that it was not of common convenience and necessity to anybody. 5. Said highways were not legally shut, so that the order of the committee that they be not re-opened is null and void. 6. That the committee exceeded its authority, and attempted to assume the authority and power of the court, in deciding and ordering “that both said highways, the Dark Entry road and the Muddy Brook road should be and remain discontinued and closed,” and both its report and its action are illegal and should be set aside. The defendant demurred to the several grounds of remonstrance, and the court decided that they were insufficient. The plaintiff assigns such decision as error. The decision of the court was manifestly correct. If the committee did (as is assumed by the plaintiff in his fourth ground of remonstrance, and admitted by the demurrer, but nowhere else appears) come to the conclusion that one of the roads was convenient and necessary for the plaintiff and a few of his neighbors, such finding was not necessarily [409] decisive of the question of common convenience and necessity, and is not inconsistent with the general finding that the road was not required by common convenience and necessity. And there is no foundation for the claim made in the sixth ground of remonstrance. The only comment to be made upon the language of the committee referred to in it is, that it was unnecessary, the report being complete without it. The other alleged errors have no foundation. Upon the plaintiff’s application, the only question at issue between the parties was, whether these highways, or either of them, were of common convenience and necessity. Indeed this was the only question which, by the statute under which the application was made, the committee could determine. If the matters which he now sets up bore upon that question, he had an opportunity to offer his evidence in support of them on the trial, and cannot now be heard upon them. If they did not, they are outside of the case as it stood before the committee. Upon the return of the report of the committee, in the absence of any “irregular or improper conduct” on their part, the duty of the court, as defined by the statute, was to dismiss the application with costs. There is no error in the judgment appealed from. In this opinion the other judges concurred.