Lockwood v. Gregory

Brainerd, J. The original process was a petition preferred by the defendants in error to the county court for Fairfield county, February term, 1808, stating, that at the port of Norkvalk is a convenient market for country produce ; that by navigation, it has connexion with thp — 414 — principal sea-ports in the United, States, and with foreign parts; that northwesterly of the port, is a fertile and well cultivated country, to which the harbour and market would be of great importance, were there any public road to accommodate the travel and transportation thither; that the roads from the meeting-house in New-Canaan to said port are the only ones in which the travel thither can be accommodated; that the same are very hilly, and so circuitous as to render the travelled distance between said port, and said meeting-house, upwards of six miles, when two thirds of that distance would be the full length of a road which might be laid out, which would avoid all the hills, and accommodate the travel: praying said court to order a new highway to be laid out from said meeting-house to said port, according to the statute in such case provided. On which petition the county court appointed a committee to view and report the necessity of laying out said new road or highway- — 11 to view and report the necessity and convenience of the road as prayed for.” Which committee reported, “ That certain alterations by them designated between said meetinghouse and said port would be of public advantage and convenience; and that the same ought to be made or laid out.” To which report, before acceptance by said court, the plaintiffs in error interposed their remonstrance, stating that said report ought not to be accepted 51 for several causes and reasons stated and alleged in the votgs of the inhabitants of the town of New-Canaan legally warned, &c. And because there are now a sufficient number of roads leading from every part of said New-Canaan to Norwalk-Bridge to accommodate all the inhabitants of New-Canaan in travelling there, and said roads are laid out in the best possible places for the convenience of all said inhabitants to travel to said bridge; and forasmuch as said committee have not reported on the best ground,” See. This remonstrance the county — 415 — court adjudged insufficient, and accepted the report of said committee. The language of the court is, “ And this court having considered and adjudged that said remonstrance is insufficient in the law, do thereupon accept the report of said committeeand said court did also thereupon appoint a committee to lay out, &c. and report, &c. who accordingly laid out and made report, which was by said court accepted and recorded. On which a writ of error was brought to the superior court, and from a judgment of affirmance by that court the present writ of error is brought. On which arise three questions: 1st. Whether the petition is sufficient ? 2d. Whether the remonstrance is sufficient l 3d. Whether the finding of the court, on the report of the viewing committee, is sufficient ? To the first point it is urged that the petition is in» sufficient; for that it does not pursue the requisites of the statute; that it does not state that the road prayed for would be “ of common necessity or convenience.” From an attention to the statute, I apprehend that in an application to the court for a highway, this specific allegation is not necessary. It becomes the duty of the court on an application to inquire into the convenience and necessity of the highway prayed for; and undoubtedly, the application ought to state such facts as, if true, would induce the inference that the highway prayed for would be of common convenience and necessity. And on this point, I cannot conceive a doubt but that the whole scope of the expressions in the application to the court centres in a point whence the inference of the necessity or convenience of the road may be fairly drawn. With respect to the second point, I would premise, that as cases of highways may become subjects of writs of error, there must be a point when they also become subjects of regular pleadings. This, in my apprehension, — 416 — has arrived, when a committee, under the appointment and direction of the court, have reported a direct and substantive fact, or set of facts. The question, then, is whether, in the remonstrance, there is a denial of any positive and substantive fact stated in the report ? or is there, in avoidance, any essential, positive averment on which a traverse might be taken, or issue joined ? I apprehend not. A recital of the causes and reasons voted by the inhabitants of New-Canaan is no averment; neither is the expression “ And forasmuch as the committee have not reported on the best ground,” an averment. That part which remonstrates against the report “ Because there are now a sufficient number of roads leading from every part of said New-Canaan to JVorwalk-Bridge to accommodate all the inhabitants of said Neto-Canaan in travelling there, and said roads are laid out in the best possible places for the convenience of all said inhabitants to travel to said bridge,” is merely local — applicable to the inhabitants of JVew-Canaan only. No fact or facts stated in the remonstrance amount, in legal construction, to a denial that said alterations would be- of public advantage and convenience. As to the third point. The statute is, “ The'court may inquire by a committee, or otherwise, into the con-veniency and necessity,” &c. “ And if judged by the court to be of common convenience or necessity ” &c. In this case the county court appointed a committee “ to view and report the necessity and convenience,” S?c. which committee reported, “ That said alterations would be of public advantage and convenience, and that the same ought to be made.” Which report the court accepted ; and therein and thereby did find and judge said alterations to be of public advantage and convenience, and that the same ought to be made. From a consideration of all the points in the case, I am of opinion that there is no error on the record, and that the judgment of the superior court ought to be affirmed. — 417 — In-this opinion Mitchell, Ch. I. and Reeve, Swift, Trumbull, N. Smith, Baldwi», and J. C. Smith, Js. severally concurred. Edmond, J. The original process was a petition by the now defendants in error, to the county court in Fair-field county, for a highway, on which a committee was appointed, their report accepted, and a road laid out. On error brought to the superior court, the doings of the county court were affirmed; and from thence, by writ of error, the case comes here. Several questions are raised in this case. 1. Whether the original petition is sufficient in law? The 11th section of “ An act for providing, altering, regulating and mending highways,” (tit. 86. c. 1.) gives to the county court jurisdiction, and points out the mode of process; and the validity of their decisions depends on a reasonable compliance with the authority therein given. This act gives to any person or persons, “ where any new highway or common road is wanting from town to town, or place to place, or where old highways may with more convenience be turned or altered, the right to make afifilication to the county court ” and directs the manner of notice. The particular form of the process is not pointed out, but left to stand on the general provisions of the law respecting ordinary civil process, (tit. 6. c. 1. s. 1.) which requires that the declaration “ shall contain the substance of the actionThe petition, in the present case, does not state that “ a new highway is wanting.” There is no averment, direct or indirect, that the highway prayed for would be of common convenience or necessity ; or, that if laid out, it would be of common convenience or necessity; nor are there any facts, pr set of facts, set forth in the petition, which, if traversed and found true, would, by necessary implication or inference, warrant such a conclusion. But supposing the facts set out in the petition should. — 418 — by the utmost admissible latitude of construction, authorize the court to infer that a new highway was in fact wanted, and that laying it would be a matter of common convenience or necessity ; another insuperable difficulty arises in this, case. It nowhere appears from, the record, that any one fact stated in the petition is found by the court, or their committee, to be true. Where a petition for a highway comes before the county court containing matter of substance, sufficiently set forth to authorize an inquiry, it becomes the duty of the court to inquire into the truth of the allegations, by themselves, or by a committee. This inquiry is to be made, as in every other case, by the examination of competent witnesses, and other legal evidence; and judgment is to be rendered by the court secundum allegata et probata. i From the record it appears, that the court granted the prayer of the petition so far as to appoint a committee “ to view,. and report the necessity and convenience of the road as prayed for in the petitionThis was the whole of their commission; and in conformity to this appointment, the committee report, that being appointed a committee, &c. “ to view and report the necessity of laying out a new road or highway from the meeting-house in JVew-Canaan to the port in JVorwalk, and having met and viewed the present travelled road, and the ground proposed for a new road, and heard evidence for and against the necessity and convenience of said road, they were of opinion, that a new road laid out from the port in JVor-walk, taking various directions to JVew-Canaan meetinghouse, would be of public advantage and convenience?' This report was returned to the court, and was remonstrated against by the-petitioners. To the remonstrance there was a demurrer and joinder; and the court, after hearing, “ considered and adjudged the remonstrance insufficient,” accepted the report, and appointed another committee to lay out. This report, that in the opinion of the committee a new road laid out, &c. would be of — 419 — public advantage and convenience, is the only thing found ⅜, and the issue joined on the demurrer is the only issuttf* found, or directly adjudicated upon, that appears on the record; and on this point, the court were undoubtedly correct. Inasmuch, therefore, as the petition is insufficient for ■want of substance: inasmuch as none of the allegations in the petition have been found to be true, either by the court or committee : and inasmuch as nothing more has been found by the court or committee, or accepted by the court, as appears by the record, than the opinion of the Committee on a fact not alleged in the petition; I am of opinion, that in the record, process, &c. there is manifest error. Judgment affirmed.