
    W. O. Standish, et al. vs. The City of Montpelier and Town of Berlin.
    January Term, 1899.
    Present: Tart, C. J., Rowell, Tyler, Munson, Start, Thompson and Watson, JJ.
    Opinion filed April 29, 1899.
    
      Report of Commissioners — Refusal to Recommit. — The county court properly refused to recommit a report of commissioners upon the motion of a party who had had his day' in court.
    Proceedings to lay out a highway. Heard upon the report of commissioners, exceptions thereto and motion to recommit the same, atthe September term, 1898, Washington county, Start, J., presiding. Proforma judgment overruling the motion and exceptions and accepting the report with the usual orders. The Montpelier & Wells River Railroad excepted.
    The Montpelier & Wells River Railroad moved to recommit the report for the purpose of having the commissioners find the amount of damages said railroad would be entitled to if the proposed highway should be established across its track at grade.
    
      J. P. Lamson for the Montpelier & Wells River Railroad.
    
      Fred L. Laird and T. R. Gordon for the petitioners.
   Tyler, J.

This case comes here upon exceptions by the Wells River Railroad Company to the ruling of the court below denying its motion to recommit the commissioners’ report, to the overruling of its exceptions to the report and to the acceptance of the same. The only exception insisted upon in the brief and argument is that to the refusal of the court to recommit the report.

The commissioners, after a full hearing, found and reported, that the public good and the convenience and necessity of individuals required the laying of the proposed highway across the track of the Wells River Railroad Company and they expressed the opinion that it should be laid at grade. They also found and reported that it would be impracticable to build the highway under the railroad, and that in view of the difficulty and expense of constructing an over-grade crossing, such a crossing was not required.

The Railroad Company had notice of and was present by its counsel at the hearings, and had ample opportunity to present its claim for damages to the commissioners. Without deciding what damages, if any, the Railroad Company might have recovered, if it had presented a claim therefor, we must refuse to order the report recommitted for the reason that the Company has had its day in court.

JicdgmenL affirmed.  