The towns of Winchester and Colebrook against Hinsdale and others, 12 Conn. 88

Williams, Ch. J. I feel compelled to differ from my brethren upon the point which has procured a reversal of the judgment in this case. And the simple question is, whether the county court have a right to reject the report of a committee who have laid out a road, in part, or whether they must reject or accept it in toto.

It seems to me, that the statute meant to vest the power of laying out highways in the county courts ; and that these courts are accountable for its due and proper exercise; that although they must employ a committee to view for them, yet the doings of that committee are subject to the supervision of the court. They are, like a master in chancery, or our committee in chancery, to furnish facts and to express their opinion thereon ; all which, however, is to be subject to the review and final decision of the court. Or they may be compared to auditors in actions of account and book debt.

The court must appoint them, in the former case, and may, in the latter. The statute requires, that they shall adjust the accounts, and award that the party in whose favour they find the balance to be due, shall receive the same ; and on the return and acceptance of the report, the court shall render judgment that the party in whose favour it is made, shall recover the sum found to be due, (fee. The court, however, are to accept the report. To determine whether this shall be done, they must hear, examine and weigh the objections to it, and each of them. And in Smith v. Brush, 11 Conn.

Rep. 359. 368., it was said, and supposed to be the opinion of the court, that “ it would seem to follow, that if the court were bound to examine each particular item, they might reject one or more of these items, when they were so distinct that this could be done without interfering with other parts of the account.” The same reasoning will apply to the report of a committee laying out a highway ; as it is perfectly apparent, that there may be cases where such a power would be almost necessary.

For example ; a road is requested from Windsor to Hartford; a committee is sent out, who find ground West of the present road, by which all the clay ground is avoided until within two miles of the statehouse ; they then cross the present road and go East into the meadow ; the court are of opinion that the West

section is of great advantage, but that the

section East of the old road will be subject to be overflowed, by freshets, and will be very expensive. Upon our construction, they must reject what would be a great public advantage, or encumber it by a useless and expensive appendage. They have indeed the right to accept the whole, and then, at the next court, discontinue that part of it which they think unnecessary, upon application made for that purpose. But if, as it was said in Plainfield v. Packer, 11 Conn. Rep. 581., “applications for highways are necessarily tedious and expensive,” 1 am not disposed to add new embarrassments to them.

And under the construction given to our statutes regarding highways, I believe the uniform practice was, for the county court to accept the road laid out by the committee, in part or in whole, as they judged proper. It is said, however, that by the existing statutes, that practice cannot be allowed. To determine this point, we must compare the statutes now existing with some of earlier date. The llth

section of the act concerning highways, in the edition of 1808, which is almost a transcript of the statute of 1784, prescribed the mode of making application to the county court for a highway ; and provided, that if no objections were offered, or if the objections offered were adjudged insufficient, the court might enquire, by a disinterested committee or otherwise, into the convenience and necessity theieof; and if the same was judged, by the court, to be of common convenience and necessity, they were to appoint a committee to view and lay out or alter such highway ; which committee, after notice given, were to perform this service according to their best skill and judgment, with the most convenience to the public and the least damage to private property ; and should ascertain the place and course of such highway, and estimate the damage done to any particular persons, by laying out the same, and make return thereof in writing, under their hands, to said county court; which being approved by said court and recorded, said highway should be and remain a common highway.

Slat. 377. (ed. 1808.) In May, 1814, the law was modified; so that if the court adjudged the objections offered to the petition, in the first place, to be insufficient, they were to appoint a committee to enquire into the convenience and necessity of the road prayed to be laid out or altered ; and if this committee were of opinion that the road was of common convenience and necessity, they were to lay it out, assess damages, and make report of their doings, and return the same to the court; and then all persons interested might appear and remonstrate, and shew that the road was not of common convenience and necessity, as well as that it was injurious to individuals, and ought not, in other respects, to be accepted.

This statute was obviously intended to alter the former law, in two respects : first, that if no sufficient objections were shewn to an application for a highway, the court must send out a committee to enquire, and could not enquire otherwise, as it had been held, by this court, in Windsor & al. v. Field & al. 1 Conn. Rep. 279 284., they might do.

Secondly, it had been adjudged, by the county court, under the former statute, that after the court had decided, that the road was of common convenience and necessity, and had sent out a committee to lay it out, individuals could not come in and try that question, upon the report of the committee. This statute provided, that after such report, this objection might be made; but it left the subject of the approval of such report by the court, just as it was before, and repealed only so much of the former act as was inconsistent with these provisions.

Under these statutes, so far as I am informed, the county courts uniformly accepted reports in part or in whole, as in their opinion the merits required; and I should say with the court in Bennett v. Hall, 1 Conn. Rep. 418. immemorial usage has sustained it; nor do I see any objection to it. But it is supposed, that the statute, by the terms of it, as revised in 1821, requires”a different construction.

It is believed, that those who compiled that act intended to condense the old laws then existing, taking into view the construction given them by the courts, With this in view, we find, that the old law regarding highways, as altered by the statute of 1814, and by another act of 1802 relative to the powers and duties of a jury in the re-assessment of damages, is re-enacted. The introduction of these two acts required some variation of the phraseology ; and whether this is such as requires a new construction to this part of the act, is the question.

After introducing the two acts of 1802 and 1814, which, I think, it will not be claimed, changed the power of the court as to accepting the report in part, the revised statute goes on and makes provision that the persons aggrieved as to damages may move for a jury, upon the return of the report; and if the court are of opinion that the report ought not to be accepted, they may reject it; but if they think it ought to be accepted, then before acceptance, upon application, they may order a jury, whose powers and duties are prescribed ; and if, on the return of the jury, accepted by the court, they shall not add to the damages, the court shall accept the report; and if the damages are increased, the report shall be accepted, with such increased damages.

After this, the statute pursues almost the words of the former act: “ And when so accepted, in either of the cases aforesaid, and approved by the court, the report shall be recorded, and said highway shall be and remain a public highway.’1 Stat. 269, 270, 1. tit. 48. s. 12. It seems to be supposed, that because these words are used, the court shall accept the report; and that it becomes imperative upon the court to accept the whole report. But this provision ought to be taken in connexion with that which precedes it.

It is founded entirely upon the fact that the court had before been of opinion that the report ought to be accepted. That being the case, a jury, upon application, are to be sent out aa to damages ; and as another

section has made their return as to damages conclusive, to make all consistent, the act provides, that whether they do, or do not, increase the damages, the re-_ port shall be accepted, but leaves the statute substantially as it was before ; because there is nothing more imperative than before, except that when the court have given an opinion that the report laying out the road ought to be accepted, that opinion is not to be changed, by the result of the jury as to damages. It has been said, that by the statute, as now existing, the powers of the court and committee are entirely distinct.

It is true, the duties of the committee are distinct from those of the court. This is equally true with regard to committees in chancery and auditors; but does it hence follow, that the court has not a superintending power over such committees or auditors? It was also said, that we decided in Plainfield v. Packer & al. that the doings of the jury were conclusive. That is true ; for the statute makes them so, in express terms, with one or two exceptions.

It was also said in the argument, that great injustice might be done as to damages ; because the rule might be very different, if the whole road was opened, or only a part. But this difficulty seems to be well guarded against. The court are to declare their opinion upon the report, as they decided in this case ; and then the persons who suppose themselves aggrieved have an opportunity to pray for a jury, if they see cause.

It seems to me, then, that the power which the court exercised, in this case, is one highly proper for a court to possess ; that they always did exercise and possess it, under the former statutes upon the subject; and I can discern nothing in the re - vised statutes, by which this power was taken away, or which leads me to think that it was intended to be taken away. I am, then, forced to the conclusion, that there is nothing erroneous in the judgment complained of. Judgment reversed.

After the reversal of judgment, the defendants in error moved, that the cause should be remanded to the county court for ulterior proceedings ; and thereupon the question arose, what judgment ought the county court to render, when the cause comes again before them ? The counsel for the defendants in error, contended, that the only proceedings which could be had in the county court, would be, to enter up judgment upon the report of the committee, accepting it entire, and establishing the whole road.

The petitioners aver, and the committee have found, that the highway prayed for will be of common convenience and necessity. Upon the coming in of the report, it would have been the duty of the court to accept it, if no objections had been made. Stat. 271. tit. 48. s. 12. There was in facta remonstrance; but as the court has found, that it was not 'proved, the case stands on the same ground as though no objections had been made. The error, and the only error, of the court, was in accepting the report and establishing the road in part.

It is the qualification alone, that is affected by the judgment of reversal: in every other respect, the record remains untouched. But if this view of the case is not correct, still the court below must begin at the first error — i. e. with a trial of the remonstrance de novo. The report of the committee stands good. There is no reason for sending them out again. The counsel for the plaintiffs in error, insisted, that there must be a new trial, by the court and committee, on the great question in issue, viz. whether the entire road prayed for was of common convenience and necessity.

The Court decided, that the cause must be remanded to the county court, to be, proceeded with according to law; but declined giving any specific direction to that court in relation to ulterior proceedings in the cause. Cause remanded. This is in accordance with the recollection of the reporter, who was one of the committee of revision.