Anderson v. Town of New Canaan , 70 Conn. 99 ( 1897 )

Hall, J.

By the first reason of appeal we are asked to decide, first: “ that upon the evidence in the case the roads described in the complaint are not public highways,” and that the Superior Court erred in not so holding; and second, that this is not a proper action in which to determine whether the roads described in the complaint are public highways, and that the trial court should have so held.

The first part of this reason of appeal presents no question which can be reviewed by this court. It wholly fails to specifically and distinctly describe any error of law committed by the trial court. Apparently, from the record, the principal question upon the trial, and the one upon which the case turned, was whether these roads were highways. This assignment of error is equivalent to a statement that upon the evidence the judgment should have been in favor of the defendant. Osborne v. Troup, 60 Conn. 485, 490; Kimberly et ux. Appeal, 68 id. 428; Rules of Practice, Chap. 14, § 4, p. 258.

If it can be regarded as a sufficient assignment of either an error of fact or of law, it cannot he considered by this court, for the reason that we have not before us all the evidence upon which the Superior Court decided that these roads were highways. Exhibit A does not purport to be a statement of all the evidenbe. The record shows that the presiding judge made a personal inspection of the locus.

Tins assignment of error is but an attempt to procure a new trial, by retrying in this court the questions of fact which have been tried and decided by the Superior Court. This court cannot for that purpose retry such questions. Styles v. Tyler, 64 Conn. 432; Atwater v. Morning News Co., 67 id. 504; Neilson v. Hartford Street Ry. Co., ibid. 466; Scott v. Spiegel, ibid. 349.

For the purpose of correcting the record, it is unnecessary to refer to those reasons of appeal which are based upon the finding by the court and its refusal to find particular facts. The proper presentation of the only question of law raised by the appeal, namely, whether the county commissioners and the Superior Court might, in this proceeding, decide whether these roads were highways, will not he aided hy such correction of the finding. That question is apparent upon the record as it now stands. Hatch v. Thompson, 67 Conn. 74.

The purpose of this proceeding was not to establish or fix the bounds of highways, but to compel towns to repair existing public ways. If, upon the trial, for the purpose of escaping the duty of repairing a particular road, the town attempts to show that such road is not a highway, as was evidently done in the present case, it becomes the duty of the triers to hear the evidence offered, and to decide that question as incidental to the decision of the main question of the duty of the town to make the desired repairs. By making the claim that the way in question is not a public one, the town cannot defeat the purpose of the statute under which this proceeding was commenced, by compelling the complainants, before obtaining from the county commissioners an order for the repair of the roads, to first, hy proceedings under another statute, procure them to be laid out and established as lawful highways.

There is no error.

In this opinion the other judges concurred.