Miller v. Colonial Forestry Co. , 73 Conn. 500 ( 1901 )

The action of the trial judge in sustaining the demurrer is based upon the theory that the allegations of the complaint show that no highway has been laid out, and therefore no land can be condemned, and he has no jurisdiction to appoint appraisers. We think this interpretation of the law is incorrect.

Section 2699 of the General Statutes prescribes the mode of proceeding in laying out a necessary highway within the limits of a town by its selectmen, who are made the officers of the law for that purpose. Torrington v. Nash, 17 Conn. 197, 199; Mallory v. Huntington, 64 id. 88, 100. Section one of the Special Act of 1899, referred to in the complaint, prescribes precisely the same mode of proceeding in laying out a highway in the town of Hartland "leading to any public pond or lake lying wholly or in part in said town, and along the shores of such pond or lake in so far as the same may be reasonably convenient for the use of boats thereon and for the taking of ice therefrom," except the single additional requirement that the action of the selectmen in such case must be based "upon the petition of no less than ten of the legal voters of said town."

Section three of the Act declares that the damages caused by the condemnation of land for such highway shall be ascertained in the manner provided in §§ 2706 and 2707 upon the layout of any highway. We think this section is declaratory only; that is, that §§ 2706 and 2707 would apply if § 3 had been omitted.

The purpose of §§ 1 and 3 of the Special Act, is either to authorize the condemnation of land for a way which is not a necessary highway within the meaning of § 2699, or to require merely the additional formality of a petition by ten or more voters, when a highway which is authorized under § 2699 leads to a public pond in Hartland. A highway, as the word is used in our statutes, is for a public use, and land condemned for a highway is condemned for a public use.

Section 2699 authorizes the layout of any highway in a town which is for a public use. If, therefore, the object of the Special Act were to authorize the layout of a highway not covered by § 2699, the law would invite criticism as an attempt to take property for a use not public. Such intention is not to be imputed to legislation unless clearly expressed. Here the language of the legislature is entirely consistent, and perhaps more consistent, with the alternative intention; namely, to simply require the petition of ten voters before a highway provided for by § 2699, and leading to a public pond, can be laid out in the town of Hartland. No claim is made that the imposition of such a restraint upon the laying out of a highway is obnoxious to any constitutional provision, and that question (if it be a substantial one) is not involved in this appeal.

But it is suggested that the Special Act takes away the privilege given by § 2701 to any person aggrieved by the doings of selectmen in laying out any highway, of applying to the Superior Court for relief. We do not think that the Act has such effect. It is affirmatory of the established mode of proceeding, merely adding the requirement of a petition before the selectmen can exercise their existing authority. Moreover, it implies a right to a review of the layout by the Superior Court. This mode of laying out a highway within the limits of a town was established in 1773. 14 Col. Rec. 80, 81, 82. An express condition on which such authority was then given to selectmen was that any person aggrieved by any act done by selectmen in laying out a highway might apply to a court for relief, which court might upon inquiry grant such relief as should appear just and reasonable; and so the Act of 1773 provided that no highway laid out through any person's enclosure, "who shall declare himself aggrieved by laying out the same, shall be laid open or occupied until the expiration of twelve months after laying out such way, that such person may have opportunity to apply for relief as aforesaid." This language, declaring the purpose for which such postponement of opening the highway was ordered, remained substantially unchanged until 1875. In the omission of unnecessary words and condensation of expressions thought susceptible of it, which marked the Revision of that year, the declaration of the purpose for which the opening of a new highway is postponed — being settled by the practice of a hundred years — was deemed unnecessary. But the mischief which this provision was designed to remedy, remained the same, and must be taken into account in construing the statute in its new form; and when, in the Revision of 1888, the same postponement of the opening of a new highway was required, it was required presumably for the same reason: in order that parties aggrieved might have an opportunity to apply for relief to a court. So, in this Special Act of 1899, § 1, in requiring a postponement of the opening of the highway, declares the same purpose. As affecting the purpose for which the postponement is required, it is immaterial whether it be for two months or twelve months. The section thus secures to parties aggrieved by the doings of the selectmen in laying out the highway, that relief by application to the Superior Court which the law provides. The court is bound so to construe the section, if such construction is consistent with the language used, rather than attribute to the legislature an implied intention to wholly abandon a policy which has controlled the laying out of highways by selectmen for more than a century, and which has heretofore been recognized as essential to the justice and reasonableness of that mode of proceeding.

The only doubt as to this meaning arises, not from the language of § 1, but from the provision of § 2, that the acceptance of the survey by the town (which has always been a necessary part of the layout by the selectmen, Wolcott v.Pond, 19 Conn. 597, 601), "shall be conclusive upon the question of the public convenience and necessity of such highway." A mistake by the selectmen in finding a highway to be of public necessity is not the only way in which a party may be aggrieved by their doings in a layout (Sackett v.Greenwich, 38 Conn. 525), and so it may be that this provision is not wholly inconsistent with the right to relief secured in the first section. But if it is; if the two provisions are absolutely repugnant and one or the other must be held to be ineffective, then the considerations which may properly influence the construction of a statute containing such conflicting provisions, would compel us to hold the provision of § 2 to be the ineffective one. The most, therefore, that can be now said in support of the defendant's contention is, that § 2 provides that upon application to the court for relief, the acceptance of the survey by the town shall be conclusive evidence upon the question of public convenience and necessity.

The defendant urges that such a provision is unconstitutional and invalidates the whole Act. The obnoxious provision is an independent and separable one, and, if void, the remainder of the Act stands. The question of its validity cannot be properly determined in this proceeding. The plaintiffs have alleged in their complaint facts sufficient to show the layout of a highway and to require the appointment of appraisers, and the allegation that the highway described is in fact one within the meaning of the statutes, is admitted by the demurrer. It follows that appraisers should be appointed, whatever view may be taken of the constitutionality or validity of the provision of § 2. If constitutional, of course the appointment should be made; and if unconstitutional the provision is simply void, it disappears from the Act, and in pursuance of the remaining valid portion appraisers must still be appointed. Upon an application to the Superior Court for relief from any grievance caused by the doings of the selectmen in this layout, if a claim were made that the acceptance of the survey by the town is conclusive evidence of public convenience and necessity, the validity of the provision of § 2 would become a material question; it is not material in this proceeding.

There is error, the judgment of the judge of the Superior Court is set aside, and the cause is remanded for further proceedings according to law.

In this opinion the other judges concurred.