Reynolds against Reynolds, 15 Conn. 83

Storrs, J. The points made by the plaintiff in error will be considered in the order in which they have been presented on the argument. 1. It is claimed, first, that on the facts stated in the bill of exceptions and remonstrance, the petitioner was not entitled to the benefit of the statute providing for the laying-out of private ways.

From the finding of the county court, on the remonstrance of the respondent against the report of the committee appointed to lay out the way in question, as well as from the bill of exceptions filed by him, it appears, that, before the application of the petitioner to the select-men to lay out said way, the petitioner had applied to the said selectmen for a way from the twenty-five acre tract mentioned in said petition, through the respondent’s lands, to the highway lying Easterly thereof, which the select-men agreed to, and proceeded to lay out; that, before they had perfected their doings, and when they had laid out said way in part only, they, at the request of the petitioner, forbore to proceed further, in consequence of which the way so agreed to be laid out by them, never became legally established ; that said way,. if laid out, would have enabled said petitioner to occupy said twenty-five acre tract, and would, by its connexion with said highway, have furnished the petitioner a continuous way to said tract from his dwelling-house, with convenience, as the respondent claimed, but, as the petitioner claimed, with less convenience than by the way prayed for in the present petition ; that the petitioner afterwards purchased the seventy-acre tract mentioned in the petition, and applied to the selectmen for the way prayed for in this petition ; whereupon the select-men o fie red to lay out the way which they had previously agreed to, and proceeded in part to lay out and forbore to proceed further with as aforesaid, but refused to lay out the way prayed for in this petition ; that the way established on this petition was not needed for the occupancy of the seventy acre tract, but would be of great convenience to him, not only in giving him access to the twenty-five acre tract, but in connecting it with the seventy acre tract; and that said way runs from the latter, which adjoins the highway, to the former.

The respondent claimed, in the county court, and now insists, that as the way first contemplated and agreed to be laid out, would enable the petitioner to have access to his tw’enty-five acre tract, but was prevented by his acts, he is precluded, in this petition, from having the way7 laid out which is therein sought, and that he stands on the same ground as if the way first contemplated had been established. It is difficult to perceive how the petitioner is precluded from a subsequent application, by the proceedings on the first.

The objection proceeds on the ground that the petitioner is entitled to such a way as is necessary to his land. On the first application, no such way was established. By the discontinuance of the proceedings on that application, he was left in the same situation as if the application had not been made. He was left without access to his land ; for no way to it had been legally established. It cannot appear, nor is there any presumption, that the way first contemplated, if the select-men had not forbore to proceed, would finally have been established.

Nor does it appear, that the way then contemplated would have been the most suitable or proper way, when the application in the present case was made. It is obvious, that, if it was the most suitable when the first application was made, the circumstances may have so changed, that when the subsequent application was made, it would be wholly unsuitable, and the way afterwards laid out, the only one which could, with propriety, be established. Of those circumstances we cannot judge : it was a proper subject for the consideration qf the committee, subject to the revision of the tounty court.

A different state of things might, and we are to presume did, exist, when the last application was made. The determination of the select-men must be made with reference to the state of things when the application is made to them, and not at any previous period, when a different determination might be proper. And there is nothing before us to shew, that there wras not such a change in the circumstances as rendered it proper to lay out the wray which was finally established, rather than that which the select-men deemed the most fit, on the first application.

That there might be such a change, in any case, is obvious : that it might be so, in this particular case, we can well believe, since it appears, that the petitioner had, between the first and second applications, purchased the seventy acre tract, which may have so changed the situation of the petitioner with respect to the other lot, to which he sought access, that it might have been proper to grant him a different way from that which would have been proper before.

We cannot, as matter of law, say, that the way finally established was not legally established, merely because the select-men had previously offered and were ready to lay out for the petitioner a way, which, at his instance, they finally omitted to do. A discontinuance of proceedings, under an application to selectmen for a private way, in consequence of which nothing effectual is finally done, is not, necessarily, a bar to a future application for the same purpose; especially, when there has been, in the meantime, a change in the situation of the premises. Bruyn v. Graham, 1 Wend, 370. 2.

The plaintiff in error next claims, that it appears from the record, that although the way laid out by the committee, is convenient for the petitioner, yet that it is not strictly and absolutely necessary in order to enable him to cultivate, or have access to, his land ; and he, therefore, insists, that by the true construction of the statute on this subject, it is not a case where the petitioner is entitled to such way.

This-claim proceeds on the ground that there is a distinction in the provisions of the statute between public and private ways ; and that the same necessity and convenience, which would warrant the laying-out of a public highway, is not sufficient, on an application for a private way ; but that in the latter, a necessity for the way. in the strictest and most absolute sense of the term, must be shown. This distinction is deduced from a supposed difference of phraseology in the sections of the law, which relate respectively to the two species of ways.

As the record presents this case to us, we do not think, that we are here called on to decide whether the same or synonymous words used in the several sections of this statute as applicable to the two kinds of ways, are to be differently construed.

The eleventh section, which provides for the laying-out of private ways, prescribes, that “ the select-men of the respective towns, or a major part of them, may lay out such public highways or private ways as they shall judge needful within their respective towns.” The fourteenth section, on which the present application is founded, provides, that “ if the select-men, on application to them, shall refuse or neglect to lay out such private ways as may be necessary for any inhabitant of said town, the county court is empowered, upon application, to cause such ways to be laid out as may appear necessary,” in the manner thereinafter mentioned.

The petition in this case, alleges, that the way prayed for “ is of great convenience and necessity to the petitioner.” It has not been, nor indeed could it successfully be, claimed, that this petition, which follows the very language of the statute, is not, in this respect, sufficient, whatever may be the import of the term “ necessary.” On this petition, a committee was appointed “ to enquire into the necessity of said way, and, if they shall be of opinion that the same is necessary, to survey and lay out the same,” &c.

The committee find and report, that the said way “ is necessary and that they have surveyed and laid out the same, particularly describing it. To this report is a remonstrance, in which it is alleged, (among other grounds of objection) that “ the said way so by the committee laid out, is not . necessaryand on a hearing upon this remonstrance, the court find, that this allegation is not true.

Unless there is something in the record, w'hich shews that the terms “ necessity” and “ necessary” are inore used in some other sense than they are used in the statute, they must be deemed to be used in the same sense, whether the language of the statute is to receive its ordinary or a more rigourous

interpretation ; and in this particular, therefore, the law has been complied with, and the decree of the county court is unexceptionable. It is, however, claimed, by the plaintiff in error, that the facts stated in the bill of exceptions and found on the remonstrance, (all of which, so far as they are material, have been detailed in considering the first point,) are to be taken in con-nexion with the report, and that these shew that the way established was only highly convenient, but not indispensably necessary for the petitioner ; and that it was considered necessary, in a qualified, but not in a strict, sense.

It is impossible for the court, from the facts thus presented, to judge of the degree of necessity which existed for the way prayed for, when the petition for the same was brought.

The length of time between the two applications, and the changes which might have occurred in the relative situation of the twenty-five acre tract, in consequence of the purchase of the other, or any other alterations in the circumstances of the property, to which the petitioner sought access, which may have been numerous, and have a most important bearing on the question of the necessity of the way prayed for, and the degree of that necessity, are not so presented to us on the record, that we can say, that the strict necessity did not exist, which is claimed to be requisite.

The facts detailed constitute matters of evidence and topics for reasoning, which were very proper to be presented to, and considered by, the county court, in arriving at a decision of the main fact, namely, the necessity of the way sought. That court, whose exclusive province it was, to find such fact, have found it expressly in favour of the petitioner. We cannot go into the propriety of that finding.

If, indeed, that court had found explicitly, that the degree of necessity which existed for the way, was short of that for which the respondent contended, the question of construction endeavoured to be raised, might fairly arise; but it cannot be said to have done so, unless it is to be inferred from the mere circumstance that a way different from. that finally adopted from the petitioner’s land to the highway, might be laid out, without regard to its course, distance, expense, and the nature of the ground on which it would be located, or indeed any other of the numerous or peculiar circumstances, which might shew whether it would be such as the statute contemplates.

That we can properly draw such an inference will not be seriously claimed. In this view of the case, it would be superfluous to examine the question whether the statutes on this subject are to be differently construed, as they relate respectively to public and private ways; and therefore, a decision of it is waived. 3.

The plaintiff in error further claims, that the private wTays contemplated by the statute, are only those, which, while they are chiefly important to individuals, are such as the public also may use, and that the way in question connecting two tracts of land merely, and having no highway as its terminus, is not such a way, and therefore, could not legally be laid out. Neither the language nor the object of the statute warrants this construction. The language of the fourteenth

section clearly shews, that the legislature intended to provide for the laying-out of such private ways as might be for the sole use of the applicant, as well as those which might also be for the common use of the inhabitants; for it provides, that the damages are “ to be paid by the persons applying for such ways, [that is, ‘ such private ways as may be necessary for any inhabitant of the town,’] if the same be for their use only, but if for the common use of the inhabitants, then to be paid by the town.” Whether the public have a right to the common use of every way, which is established under the statute, as a private way, is not necessary to be considered ; but that no private way can be laid out, excepting such as it may be in the power of the public to use as a common highway, does not appear to be sustained by the statute.

And no good reason is perceived, why a private way must necessarily connect with a public highway; or why it may not merely connect two tracts of the applicant. In the present case, as the applicant owned a tract adjoining the highway, it might be peculiarly proper, that he should have a way to the other from it, since it might furnish him with the means of occupying and cultivating the former at less expense than to have the whole way laid out on the lands of others, who would have a claim for compensation, and with equal, if not greater, convenience to himself.

It would, surely, be unreasonable to hold, that the owner of two tracts, one on the highway and the other in the rear, but separated from it at a short distance, by an intervening proprietor, must, at all events, have his private way to the latter laid out to the highway over the lands of others, rather than to have access to it through his own land. 4.

It is, however, further insisted, that it is not competent for the legislature to authorize the laying-out of a way for the sole use of a particular individual; that it would be taking the property of one person for the use of another; that this is not within the legitimate scope of legislative power; and that, therefore, the statute, so far as it sanctions such a way, is void. Under the first general rule of this court, made in 1841, it is not competent for the plaintiff in error to raise this objection.

By that rule, which is a most salutary one, it was incumbent on him, in his assignment of errors, to specify this particular objection as an error relied on. So far from being particularly pointed out and set forth, as required by that rule, it is either not alluded to at all, or merely hinted at, in the most vague manner; and not so that the other party, or the court, would have any x'eason to suppose, that our attention would be called to it. A consideration of the objection is, therefore, declined. The remaining exceptions relate to the regularity of the proceedings in the county court. 1.

It is claimed, that after that court set aside the report and doings of the first committee appointed by them, it was not competent for them to appoint another. We perceive, however, no objection to that course. Nothing in the statute forbids it; no valid reason is alleged against it; nor can any evil result from it.

Indeed, it is indispensable that the court should possess this power, in order to effectuate the objects of the law ; for otherwise, the rejection of the report of the first committee, would operate as a discontinuance of the proceedings, and it would be necessary to institute a new application, at an additional expense to all parties, to the delay of the final object, and with no benefit to any one.

In analogous cases, such as the appointment of auditors in book debt and account, and committees in chancery, as well as in eases like the one before us, the same practice has prevailed uniformly and immemorially, and there is no reason for disturbing it. 2. It is objected, that the location of the way surveyed is too uncertain, inasmuch as the commencement of it is not definitely pointed out.

The committee “ survey and lay out said private way 30 links wide, on the following line, running through the centre or in the middle of the same ; beginning at the bar-way” before mentioned, and then describe most minutely each of the courses and distances of said line, designating the land of each of the respondents on which each course runs; and further stating, that the first course runs on the East side of a wall separating a plough field from a clover pasture ; that the second runs to the North line of the respondent, Lockwood; that the third runs on the East side of a wall separating the lands of said respondent; and that the line terminates at the foot of a ledge, on the North line of the petitioner’s land.

Without considering whether it would have been sufficiently certain to state merely that the road begun “ at the bar-way,” we are of opinion that, in this case, so far as the record shews, the point of its commencement is precisely ascertained, by the subsequent minute description of the line. It is sufficient for us, that the record discloses no uncertainty; and so far from any being shewn by extrinsic evidence, the county court have found, that that part of the remonstrance, which states that the place over which the road is laid, is not defined with certainty, is untrue.

This objection, therefore, cannot prevail. 3. It was not necessary, if it would have been proper, for the committee to direct what particular kind of fences the petitioner should build in the places designated for that purpose, since the law furnishes a sufficient guide on the subject. 4. It is claimed, that the decree is erroneous, because it vests a title in the petitioner to the way after he shall have sold the land for the accommodation of which it was laid out. It is not, however, fairly susceptible of this construction.

Its language is, that “ the said way, so laid out by said committee, shall be and forever remain a private way for the use and benefit of said petitioner, his heirs and assigns, in conformity with the prayer of said petition.” Taken in connexion with the petition and subject matter, this must be construed to mean the petitioner, or whoever derives a title from him to the land, for the benefit of which the way was laid out, by inheritance or purchase. Nor was it necessary for the court expressly to limit the continuance of the way to the necessity which required it.

It is sufficient that it is laid out and established as a private way: its discontinuance, as such, must depend on circumstances over which the court has no con-troul; and it was neither necessary nor proper to provide against them. 5.

The decree is also objected to, because it does not expressly direct when the way shall be opened and the damages assessed shall be paid ; but merely directs, that, “ upon the payment” by the petitioner to the respondents of the damages assessed to them respectively, “ said way so laid out should be and forever remain a private way;” thus leaving it optional with the petitioner when to pay said damages, or whether to pay them at all, and of course, whether said way shall be established, and at what time. In this particular, we think, that the decree of the county court is clearly erroneous. The fourteenth

section of the act on which this proceeding is founded, provides, that on the refusal of the selectmen to lay out such private ways as may be necessary, the county court may cause such ways to be laid out, in the same manner as public highways are by said act directed to be laid out. That mode is pointed out in the twelfth section, by which it is provided, that “ said court shall direct when said highway shall be opened, and when the damages assessed shall be paid.” This provision, and the reason on which it is founded, apply equally to public and private ways laid out in pursuance of the statute.

It, is made applicable to the latter, by the fourteenth section. It is a most wise and salutary provision. It would be highly unreasonable, oppressive and inconvenient to the owner of land over which a way is laid out, if no time is fixed, by which it would be in his power to ascertain when his land is to be subject to this incumbrance, or indeed whether it is to be subject to it at all. In such a state of uncertainty, he could neither cultivate it safely or profitably, nor alienate it advantageously, or without embarrassment and.hazard. The object of the proceeding is to have a way laid out and established.

How can this be said to be done, when it is left wholly uncertain, and depends on-the option of one of the parties, whether this shall be effected ? It is, moreover, not consonant with the general principles on which judgments and decrees are rendered, and the end to be accomplished by them, that they should leave the matter thus uncertain and indeterminate. As, however, all the proceedings of the county court are regular and correct, excepting this part of the decree, we think that the judgment should not be reversed in toto, but only as to this erroneous portion of it.

Every thing is correct, excepting the conclusion to which the county court have arrived ; and justice requires nothing more than that conclusion should be rectified. The reasoning of this court on this subject in Smith v. Brush, 11 Conn. Rep. 369. is fully applicable to this case, and warrants us in going no further back than to the error committed.

We are of opinion, therefore, that the judgment of the superior court is erroneous, in not reversing the judgment of the county court, so far as it omitted to fix a time for the opening of the way and for the payment of the damages assessed, and that it be affirmed for the residue; and that the cause be remanded to the county court to be there proceeded with according to law. 12 Conn. Rep. 88. In this opinion the other Judges concurred. Judgment reversed in part; Affirmed for the residue; and Remanded to the county court.