Bruyn v. Graham , 1 Wend. 370 ( 1828 )

By the Court,

Woodworth, J.

This case depends on the construction to be given to the 36th and 37th sections of the act to regulate highways. The 37th section declares, that no road which has been fixed by the decision of the judges on appeal, shall be taken up or altered,' but by the order of the same judges, or such of them as shall continue in commission, joined with such other judge or judges as will make three; and that any person who desires to have such road discontinued or altered, may, with the approbation of the commissioners, call upon the judges to view the same, and decide upon the application. The meaning of this section cannot well be mistaken. The language used seems evidently to apply to a case where the judges have affirmed the proceedings of the commissioners laying out a road, and not to a case where the proceedings of the commissioners have been reversed, When that takes place, no road exists. The state of things remains the same as before any proceedings were had. How, then, can it be said, that by a reversal of all previous proceedings, a road is established, or, in the words of the section, fixed by the decision of the judges '? The intention of the legislature was, in cases where roads had been laid out and affirmed on appeal, to guard against alterations, except in a certain specified manner, making the alteration to depend on the opinion of the same judges by way of review, on the application of an individual who had obtained the concurrence of the commissioners. It is evident .this- provision was introduced as a check against alterations on slight grounds.

It is here proper to notice, that the revision of the laws in 1801, does not contain the 37th section. That section was first enacted in 1808, (31 sess. ch. 205, see. 2,) and is inserted in the revision of 1813. From this fact it may be presumed, that from 1801 to 1808, an application to alter a road already laid but, and where the same had been confirmed by three judges, might again be brought up on proper application, and that any person conceiving himself aggrieved, might appeal to any three of the judges of the’ county, and, consequently, might select a different set of judges to decide on the application. That such a course was not prohibited by law, before 1808, seems clearly to have been the opinion of the legislature, by their declaring, that no road which had been fixed on appeal, should be taken up or altered, but by the order of the same judges, if they continued in commission. The words, as well as the intent of this section, fairly imply, that previously an appeal might be made to other judges, on a new application to alter a road. The 37th section may also be considered as giving a construction to the words, “ conclusive in the premises,” contained in the 36th section, and does, I apprehend, afford the true exposition, to wit: that the decision is conclusive on the merits as to the given case, without,- however, intending to deny the right of instituting proceedings de novo for altering or discontinuing a road, although it had been previously established on appeal. If the words, “ conclusive in the premises,” are construed as prohibiting every new application, and forbidding the laying out a road, where on a former occasion the judges have refused to sanction it, then indeed, there is no error in the judgment of the court below. I consider the conclusiveness here spoken of as confined to the case in which an appeal is made, and not as interdicting or affecting a new application. Where the proceedings have been regular, and the judges decide on the merits and deny the application, it is then conclusive on that application, and is not liable to be removed into this court for supervision or review; because the decision of the judges on appeal, rests in their sound discretion, and therefore the superior court will not interfere. If, however, it should appear, that in the exercise of the discretion vested in the judges who decided on appeal, there has been partiality, or if the proceedings have been conducted irregularly, for such causes a certiorari would lie, notwithstanding the decision is declared to be conclusive. (Lawton v. Commissioners of Cambridge, 2 Caines, 182.)

The coostruction thus given to the 36th section, seems to me in accordance with the intent of the legislature, when it is considered that almost every part of the state is gradually improving, and the relative situation of places continually changing, by the increase of population, the rise of villages, the opening of new markets, and various other causes. It is obvious, that new roads may become necessary to facilitate the exchange of commodities, and admit an easy intercourse between different parts of the community. A road adjudged Biot to be necessary when the first application is made, may become so within a short time thereafter; and, if needful, why not leave to the discretion of the commissioners and judges, the right of allowing or denying subsequent applications 1 It is not to be presumed the power would be abused more readily, on the second or third application than on the first; and besides, if the application is to lay out a road through improved lands, the incipient steps cannot be taken without the concurrence of twelve freeholders on oath. If the commissioners lay out a road, or refuse to do so, where on a former occasion it had been denied, the statute has provided, that on affirmance of their determination, the services of the judges shall be paid by the party appealing. This would operate in some measure as a check ágainst appeals, manifestly frivol°us and vexatious. There is, however, but little probability that proceedings under this statute would be resorted to, for the purpose of indulging a litigious spirit; ,and if they were, it seems to me the obstacles opposed to such a course are abundantly sufficient to prevent its becoming a serious evil. It cannot be presumed, that any individual could readily obtain twelve reputable freeholders, under oath, to petition for a road through improved lands, the expense of which must be borne by them in common with the other inhabitants of the town, unless there was at least probable cause for so doing. If the commissioners and judges concurred in refusing, it would by no means prove the application to be frivolous, but that the expediency of the measure was not sufficiently apparent. There appears, then, to be no reasonable ground for distrust, that the construction I have given would lead to abuses of the power conferred; but that the legislature-intended to vest a power, to be exercised as the emergency of each particular case might require, and that a decision on one application should not be considered conclusive, or as presenting any obstacle, when a new and different state of things required a different decision. The preceding view renders it unnecessary to consider, whether the road in question was or was not substantially the same as that laid out in 1803. I am, therefore, of opinion, that the judgment of the court below bé reversed.