Baker v. Town of Windham , 25 Conn. 597 ( 1857 )

Ellsworth, J.

We think the court was correct in overruling the objections made by the remonstrant.

The selectmen of the town of Windham, having, in due form of law, laid out the highway in question, which afterward was approved by the town at a legal meeting, it became an established highway of the town, subject only to the revision of the superior court, upon the appeal of any person who felt aggrieved. An appeal was taken by Mr. Baker, and the proceedings establishing the road were set aside.

When Mr. Baker brought his petition to the superior court, asking the court to review those proceedings, it appears that the petition was served only on the first selectman of Wind-ham. This the remonstrant insists was not service enough to give the court jurisdiction. He says it should have been made on each one of the selectmen, and that this is required by the statute. (Rev. Stat., tit. 24, § 22.) The court think there is nothing substantial in this claim. The town of Windham, and not the selectmen individually, is the party respondent on the record, and the town is duly notified by service on the selectmen, as in all other cases. This is evident from the fact that the town alone is interested in and liable for the road ; its agents laid it out and the town approved of it; it must pay the damages assessed to individuals, and must make the road and keep it in repair until it sees fit to discontinue it, which may be done at any time, subject to a right of review in favor of such persons as are injured by the discontinuance. This principle was substantially decided in Plainfield v. Barker, 11 Conn., 576. We are quite satisfied that the service or notice was sufficient, and that the superior court had jurisdiction.

The next objection is, that the record does not show that, before the superior court appointed the committee to review the doings of the selectmen, the parties could not agree upon the persons to be selected. The language of the statute of 1856, chapter 53, is, “ if the parties can not or do not agree in such selection,” &c. This cause was properly before the court, as we have already shown, so that the court had taken jurisdiction, and of course could proceed to do what was legal and proper in the premises. The court did appoint the committee; hence we must presume it had found the facts necessary to render that act proper and within its province, for it certainly had acquired jurisdiction. It may have found that the parties did agree upon this very committee in the outset, and thereupon the court approved of and formally appointed them. The default of the town is not inconsistent with this supposition, and if it is, it follows that the town, not being in court, could not and did not agree upon a committee. It is not material in what part of the record a necessary fact appears, if only it does appear, as was decided by this court in the cases of Southington v. Clark, 15 Conn., 370, and Harwinton v. Catlin, 19 ib., 520.

Overruling these objections, we think the superior court did right in accepting the report of its committee, and setting aside the doings of the town of Windham and the selectmen.

We find no error in the judgment complained of.

In this opinion the other judges, Storrs and Hinman, concurred.

Judgment affirmed.