Towns of Windham & Chaplin v. Litchfield , 22 Conn. 226 ( 1852 )

Hinman, J.

We think the amendment of the petition,

allowed by the county court, in this case, did not change the ground of action, within the meaning of the statute “for the regulation of civil actions,” () 102;) and was, therefore, within the discretionary power of the county court. The effect of the amendment was not to change the general route or termini of the road prayed for, but only to change some of the intermediate objects mentioned in the application, as points to, or near, which it was proposed the road should be built. Both in the original and in the amended petition, a new road was asked for, from the same point in Chaplin, to or near the depot in Willimantic; and to obtain this was the general object of the petition. The intermediate points were mere incidents to this general object ; whether it would be proper for the road to strike one or more of them, did not depend so much upon the necessity of the road itself, between the termini, as upon a variety of other circumstances,—such as the nature of the ground, and the value of it, which would have an important bearing upon the expense of building the road,—so the probable accommodation it would give to the public travel to any intermediate village, or place between Chaplin and Willimantic, would be a proper circumstance to be considered. Undoubtedly these circumstances have an important bearing upon the question, as to the necessity for the new road, but they are rather incidental to the general object, which was, as we have said, to obtain a new road from Chaplin to the village of Willimantic; and, in applications of this sort, to tie up the parties and the commissioners, so as to make it necessary to strike every intermediate monument mentioned in the petition, without any possible relief, by amendment, or otherwise, would be vexatious in practice, and, we think, wholly unnecessary. It is claimed, however, that the amendment was allowed, at too late a stage of the proceeding, after the hearing before the commissioners. Hence, it is inferred, that the commissioners never viewed or examined the route proposed in the amended petition, and the plaintiffs in error had no opportunity to be heard thereon. That the commissioners did not examine the road, which they surveyed and laid out, is a fact which can not be made out by inference,-in such a case as this, where the report of the commissioners shows that they did examine it. The inference is directly contradicted by the report, and, in regard to the claim, that the plaintiffs in error had no opportunity to be heard before the commissioners; on the route where the road was laid, that, too, is contradicted by the presumption, that the commissioners acted fairly and not corruptly ; and to infer, that they gave the plaintiffs no fair opportunity to be heard before them, would be an impeachment of their integrity, which ought not to be made out, by inference. Nolis it to be presumed, that a claim of that sort would not have been made to the county court, if there was any foundation for it, in fact. It resolves itself, therefore, into a question, whether the fact, that the time fixed for the commissioners to meet on this subject, was prior to the session of the county court, at which the amendment was made, is itself sufficient to show, that the parties had no fair opportunity to be heard on the subject matter of the application. The meeting of the commissioners was fixed for the 18th of November, and they met on that day. That was about a month before the term of the court, at which the amendment was made ; but how long they were engaged in the examination, does not appear. The record only shows, that after the amendment was made, “ they came into court, and made their report.” We do not, however, rely on this circumstance. The amendment related back to the commencement of the suit, and the petition, in the judgment of law, was, from its commencement, as it is now. It is true, this is a fiction of law, and, for that reason, would not be suffered to operate unjustly upon the respondents; and could they have shown to the county court, either that the commissioners had not examined the road prayed for, or had not suffered them to be heard upon it, that would have been such “ irregular and improper conduct” on the part of the commissioners, as would have required that their report be set aside ; and for the very reason, that it is “ irregular and improper conduct,” it ought not to be made out by inference, but should be alleged and proved.

But, again, it is claimed, that, as the commissioners did not lay out the whole road prayed for, and, as what they did lay out, was not one continuous portion, extending into both the towns of Chaplin' and Windham, but, on the contrary, they laid out two separate and distinct parts of the road, and in such a manner that the southern or eastern portion was all of it in the town of Windham, therefore in regard to this portion of the road, the selectmen alone had jurisdiction, in the first instance, to lay-it out; on the ground, that it was not a road from town to town, or from place to place in different towns, which might be acted upon by the county court, in the first instance, without any previous application to the selectmen. This is not an objection to the jurisdiction of the county court, as the case was presented by the plaintiffs, in their petition. The petition asked for a new highway from Chaplin to the village of Willimantic, which was from “ town to town,” within the letter and meaning of the statute on this subject, and not from place to place, within the same town. Stat., 1849, pp. 422, 424. The county court, then, having jurisdiction of the application and the subject matter of it, were not, as we think, so bound by the application, that they must lay out the whole road, or dismiss the cause altogether. Such a construction of the statute would be unreasonable. Undoubtedly it must be a case where a road is wanted from town to town, in order to justify an application to the county court; and if it appeared here, that the road laid out, or either part of it, was not wanted, as a part of such road, that might be a ground on which the county court might dismiss the case. But we do not think this fact appears, from the mere circumstance, that the road is laid out in separate, distinct parts, some of which are located wholly in one of the towns. If it was not possible, in the nature of things, that pieces or parts of new road, thus located, should, when completed, form, with other means of communication, one continuous road from place to place, there might be ground for the objection. But it is obvious this is not so. Two parts of the same road 'may be separated by a navigable stream, and connected only by a bridge or ferry, over which the towns have no control. This ■ would not prevent an application to the county court, to lay out such a road, although the two parts might each be in a single town. So the two separate parts, as we suppose was the cáse here, might be connected with other roads, already built, in such a manner, that the separate parts, with the roads already established, would form one continuous road from town to town. We see no objection, in such a case, to an application to the county court, to lay out such parts or pieces of road. So far as the required road, from town to town, has already been built, there is no necessity for laying it out a second time ; and, so far as the new parts are concerned, they may not be required or needed, as mere town roads. We think, then, that in such cases, it is proper to apply to the county court, in the first instance.

It is to be borne in mind, that the original application here, was for a road from town to town. As such, it was referred to the commissioners, and, as such, they reported upon it, finding different parts of it necessary, and other parts not necessary.

For what reason some .portions of it are not required, the commissioners do not say, and, of course, it does not appear. It may be for a reason perfectly consistent with the fact, that the two parts are wanted, as connecting links in a road, such as was asked for from Chaplin to Willimantic, and, as the two parts were laid out under such an application, it must be presumed they were wanted for that purpose. If such was not the fact, we think the defendants should have alleged and shown it.

We, therefore, advise the superior court, that there is no error in the judgment of the county court.

In this opinion, the other judges concurred.

Judgment affirmed.