
    Stephen Lockwood and others against Jabez Gregory and others.
    June, 1810.
    WRIT of error.
    This was a petition to the county court of Fairfield 4 county, praying "for a highway to be laid out from the port in Norwalk, to the meeting-house in New-Canaan, at the expense of the towns of Norwalk and r naatx.
    rm . . , , * n , * ,, . 1 he petition stated, “ That at the port of yvorwa/A*, in Fairfield county, is a very convenient public market for the vending of all kinds of country produce, and a fine . . . harbour connected by its navigation with the principal sea-ports in the United States, and with foreign parts, Northwesterly of this port is a very fertile and well cul- . . tivated tract of country of great extent, to which the said harbour and market would be of great importance, were there any public road to accommodate the travel . ana transportation thither from the said northern country. The roads from the meeting-house in New-Canaan to the said port are the only ones in which the said travel r can be accommodated, and they are very hilly, and so cir- . . ,, . ,. , . , cuitous as to render the travelled distance between said points upwards of six miles, when two thirds of that distance would be the full length of a road, which might be there laid out, to avoid all the hills, and will accommodate the said travel.”
    This petition was brought to the county court, at its . . . . session in February, 1808. The inhabitants of the towns of Norwalk and New-Canaan were made parties, and appeared. At that term, the court granted the prayer Gf ° . . the petition, so far as to appoint a committee to view and report as to the necessity and convenience of the proposed road. This committee made report, at the *. r April term in the same year, that, in their opinion, a road £rom tjie port jn jyorwaif- (;0 the meeting-house in New-Canaan, laid out in a certain course, which was particularly defined in the report, “ would be of public advantage and convenience, and ought to be laid out, at the expense of the towns of Norwalk and New-Canaan^
    
    
      In an application to t,l(: county court for a highway thestatute tit. e-K sit is not necessary to allege, in the precise WOrds of the the^highway prayed for would be el of common con-necessity -”1" hut it is sufficient if the facts stated in-*'1
    A remonstrance to arc-port of the mitte^ap-™' ⅛’01111⅛:<1 °,n such apphcation, not con-tabling any direct denial of ^ ¡n^the^e" nor al-in avoidance, t°han bfrefer-*1nsto atul re* citing a town vote, without truth1 of the Gactscontained in such vote is insufficient.
    Where the report states, that the highway prayed for “ would be of public advantage and con-yenience, and that the same ought to be made,’: and the court accept that report, it is a sufficient finding by the court to authorize them to proceed to lay out the highway.
    
      The respondents remonstrated to the acceptance of this report. The remonstrance contained several allegations, which were agreed in the argument to be immaterial. Those which were relied on, were in part set forth in a vote or resolution of the inhabitants of the town of New-Canaan, which wasrecitedat length. It was introduced by the respondents in these words: “ And the respondents further say, that said report ought not to be accepted for the several causes and reasons stated and alleged in the vote of the inhabitants of the town of New-Canaan legally warned,” &c. “ which vote of said town is in these words,” &c. In this vote it was averred, that “ there are now a sufficient number of roads, leading from every part of said town of New-Canaan to Norwalk Bridge, to accommodate all the inhabitants of New-Canaan in tra-velling there, and said roads are laid in the best possible places for the convenience of all said inhabitants to travel to said bridge, and must always be kept in a good state of repair;” that there is very little travel from the centre of New-Canaan to Norwalk Bridge;" that “it is very rarely used as a market roadand, finally, “ that the new proposed road, if laid out and made, can never be of public necessity and convenience.” After reciting this vote, the remonstrance concluded in these words: “ And forasmuch as said committee have not reported on the best ground in case a new road must be forced upon them (the respondents) unnecessarily, and said report is wholly insufficient in the law, they (the respondents) pray that said report may be rejected,” &c.
    
      To this remonstrance the petitioners demurred generally. The court adjudged the remonstrance insufficient, accepted the report, and proceeded, by a second committee, to lay out the road; which last committee made their report in pursuance of their appointment, at the November term of the same court, 1808, and the same was accepted. The respondents thereupon brought their Writ of error to the superior court, who affirmed the judgment below; to reverse which judgment a writ of error was brought to this court, and the general error assigned.
    
      Daggett and Hatch, for the plaintiffs in error.
    It will hardly be denied, that a decree on an application of this kind is the subject of error; such decree is not a matter of discretion; but the reasons which warrant it are precisely defined in the same statute, which prescribes and authorized the mode of proceeding. Besides, we have another statute, which directs the manner in which writs of error shall be served in such cases, and which expressly sanctions the practice, previously well settled, on this subject; for, prior to the last-mentioned statute, writs of error were sustained, and many reversals had, in cases of this nature. The inquiry, then, is, whether the judgment below be erroneous.
    1. It is claimed that the petition is insufficient, as not disclosing any ground for the interference of the county court. The statute authorizes that court to lay out a new highway only in case “ it is judged’* to be of “ common' convenience or necessity.” This, being the matter of fact to be found by the court; ought to be distinctly averred in the petition. No precise or technical form of averment is here meant to be insisted on; but at least the principal fact, or other facts, from which that is clearly inferrible, ought to be alleged. This petition does not Contain» in form or substance, any such allegation.
    The only reasons set forth for laying out the new highway are, that “ at the port of Norwalk” there “ is a very convenient public market,” “ and a fine harboun,” which would “ be of great importance” to a certain tract of country described, if there were “ any public road to accommodate the travel and transportation thither ;” that the present travelled roads are hilly and circuitous; and that “ a road might be there laid out” to avoid all the hills, and “ will accommodate the said travel” That a new road is strictly necessary is not pretended ; and it is not shown that it would “ be of common convenience.” How extensive a portion of territory is to be accommodated; how many inhabitants it contains, if any; and whether there would be much or little travel on the proposed road, are all inquiries not resolved by any thing in this petition. Indeed, the road seems not to be prayed for on the ground that it would accommodate the public travel at all; but solely on the ground that it would lead, in a more direct course than the present roads, from a certain tract of country to “ a public market,” and “ a fine harbour” at Norwalk. But it is difficult to conceive how this market and harbour can be of importance to a tract of country, the produce of which either cannot, or will not, be transported to them ; and yet this petition does not show that the new road would at all accommodate the transportation of produce, or that any would be transported to the port at Norwalk, in any event. It alleges merely, that a road might be so laid out as to accommodate the travel, if any, in that direction. Consistently with every averment in this petition, it may be supposed that the country, from which the new road is to lead, finds a nearer and better market and harbour in some other direction, and, at any rate, that no road, leading from thence to the port at Norwalk, would at all accommodate the transportation of produce. The peti-tjon, therefore, fails to show that the market and har-bour at Norwalk could be rendered important to any part of the world by the location of the proposed road ; and, consequently, fails to show that the road is necessary, or would be convenient.
    The statute authorizes a county cotjrt to lay out or alter highways only on application máde for that purpose. By this must be intended legal application, i. e. one showing or alleging a legal claim to the interference of such court.
    2. The remonstrance ought to have been adjudged, sufficient. To this two exceptions are taken.
    First, it is said there is no averment that the facts set forth in the vote of the town of New-Canaan are true. This is a manifest misconstruction of the language of the remonstrance. We have declared that the report of the committee ought not to be accepted for the reasons stated in that vote, which is there recited in his verbis. Thus we adopt both the substance and the language, and the averment is as well as if we had said “ for the reasons following, viz.” a form which is customary and appropriate.
    Besides, the remonstrance concludes with a substantive allegation, which is not within the scope of this objection.
    Secondly, it is urged that all the averments in this remonstrance come too late; as the report of the committee bars all inquiry relative to the facts, which it sets up.
    It is almost needless to remark here, that this objection goes to overturn a practice, as old as the statute in its present form, for regulating highways.
    The finding of a jury, by the general law, and a report of auditors, by particular statute, are made conclusive. But the reports of committees on highways stand on very different grounds. There is not a word in our statute> countenances the idea that a report by them precludes inquiry. The statute authorizes the court to “inquire by a disinterested committee, or other» wise;” but not to lay out unless the road prayed for, “is judged by said court” “ to be of common convenience or necessity.” The language here used is too plain to be misunderstood. The court are to find the only fact which is the foundation of their decree, and this, after inquiry by a committee. For surely the court are not supposed first to find the fact, which is the object of inquiry, and then to appoint a committee to make that inquiry. The objection, then, really amounts to this; that though the court are to find the facts, and make up the decree, yet they are not to hear the parties at all on the only point of fact in issue; a proposition equally at war with the meaning and intent of the statute, and the established practice of our courts.
    3. If this reasoning be just, it will result, as a consequence, that the finding as to the matter of fact is defective, and does not warrant the decree. The committee have merely reported their opinion ; they have not, in point of form, found any fact. The court have done nothing more than to accept their report. But whatever facts might have been reported by the committee, it was necessary for the court to have found that the proposed highway was “of common convenience or necessity,” before they proceeded to lay it out. This not having been done, the final decree is plainly erroneous.
    i?. M. Sherman argued for the defendants in error
    at considerable length; but as the judges, in delivering their opinions, have fully considered the principal points in the case, a concise statement of the grounds relied upon in argument will be sufficient. He contended,
    1. That though by the practice of our courts a writ of error may be brought to reverse a- judgment or decree of the county court on an application for a new highway.; yet error must be shown which the law will recognise as such, or there can be no reversal. The legislature has invested the several county courts with a discretionary power to lay out highways. Whether a particular highway proposed shall be laid out or not, is a question of expediency, which it belongs to them exclusively to determine. Error is not predicable of this exercise of their discretion. The higher courts can revise their proceedings only where such proceedings are irregular.
    
    2. That the facts stated in the petition show that the road prayed for would be of great public convenience ; and are sufficient to warrant the interposition of the county court.
    3. That the remonstrance is insufficient. It contains no direct denial of the facts stated in the report, nor any positive averment of matter in avoidance. All that is claimed to be material in the remonstrance, is contained in a vote of the town of New-Canaan, which is there recited. But there is no allegation of the truth of the vote. The amount of the matter in bar is, that the town of New-Canaan have passed a certain vote.
    4. That the matters suggested in the remonstrance cannot be inquired into after the report of the committee. If the same facts can be drawn into controversy before the court, to what purpose have they made their report. By such a practice, the appointment and report of a committee become nugatory. All still remains to be done.
    5. That where the report of the committee states the requisite facts, and the court accept that report, it is a sufficient finding of facts by the court.
    
      
      
        Stat. Conn, tit. 86. c, 1. s, 11.
    
    
      
      
         Id, tit. 7. c. 7,
    
    
      
      
         Stat. Conn. tit. 4. s. 3, 4. 7.
      
    
   Brainerd, J.

The original process was a petition preferred by the defendants in error to the county court for Fairfield county, February term, 1808, stating, that at the port of Norkvalk is a convenient market for country produce ; that by navigation, it has connexion with thp principal sea-ports in the United, States, and with foreign parts; that northwesterly of the port, is a fertile and well cultivated country, to which the harbour and market would be of great importance, were there any public road to accommodate the travel and transportation thither; that the roads from the meeting-house in New-Canaan to said port are the only ones in which the travel thither can be accommodated; that the same are very hilly, and so circuitous as to render the travelled distance between said port, and said meeting-house, upwards of six miles, when two thirds of that distance would be the full length of a road which might be laid out, which would avoid all the hills, and accommodate the travel: praying said court to order a new highway to be laid out from said meeting-house to said port, according to the statute in such case provided. On which petition the county court appointed a committee to view and report the necessity of laying out said new road or highway- — 11 to view and report the necessity and convenience of the road as prayed for.” Which committee reported, “ That certain alterations by them designated between said meetinghouse and said port would be of public advantage and convenience; and that the same ought to be made or laid out.” To which report, before acceptance by said court, the plaintiffs in error interposed their remonstrance, stating that said report ought not to be accepted 51 for several causes and reasons stated and alleged in the votgs of the inhabitants of the town of New-Canaan legally warned, &c. And because there are now a sufficient number of roads leading from every part of said New-Canaan to Norwalk-Bridge to accommodate all the inhabitants of New-Canaan in travelling there, and said roads are laid out in the best possible places for the convenience of all said inhabitants to travel to said bridge; and forasmuch as said committee have not reported on the best ground,” See. This remonstrance the county court adjudged insufficient, and accepted the report of said committee.

The language of the court is, “ And this court having considered and adjudged that said remonstrance is insufficient in the law, do thereupon accept the report of said committeeand said court did also thereupon appoint a committee to lay out, &c. and report, &c. who accordingly laid out and made report, which was by said court accepted and recorded. On which a writ of error was brought to the superior court, and from a judgment of affirmance by that court the present writ of error is brought. On which arise three questions:

1st. Whether the petition is sufficient ?

2d. Whether the remonstrance is sufficient l

3d. Whether the finding of the court, on the report of the viewing committee, is sufficient ?

To the first point it is urged that the petition is in» sufficient; for that it does not pursue the requisites of the statute; that it does not state that the road prayed for would be “ of common necessity or convenience.”

From an attention to the statute, I apprehend that in an application to the court for a highway, this specific allegation is not necessary.

It becomes the duty of the court on an application to inquire into the convenience and necessity of the highway prayed for; and undoubtedly, the application ought to state such facts as, if true, would induce the inference that the highway prayed for would be of common convenience and necessity. And on this point, I cannot conceive a doubt but that the whole scope of the expressions in the application to the court centres in a point whence the inference of the necessity or convenience of the road may be fairly drawn.

With respect to the second point, I would premise, that as cases of highways may become subjects of writs of error, there must be a point when they also become subjects of regular pleadings. This, in my apprehension, has arrived, when a committee, under the appointment and direction of the court, have reported a direct and substantive fact, or set of facts. The question, then, is whether, in the remonstrance, there is a denial of any positive and substantive fact stated in the report ? or is there, in avoidance, any essential, positive averment on which a traverse might be taken, or issue joined ? I apprehend not. A recital of the causes and reasons voted by the inhabitants of New-Canaan is no averment; neither is the expression And forasmuch as the committee have not reported on the best ground,” an averment.

That part which remonstrates against the report “ Because there are now a sufficient number of roads leading from every part of said New-Canaan to JVorwalk-Bridge to accommodate all the inhabitants of said Neto-Canaan in travelling there, and said roads are laid out in the best possible places for the convenience of all said inhabitants to travel to said bridge,” is merely local — applicable to the inhabitants of JVew-Canaan only. No fact or facts stated in the remonstrance amount, in legal construction, to a denial that said alterations would be- of public advantage and convenience.

As to the third point. The statute is, “ The'court may inquire by a committee, or otherwise, into the con-veniency and necessity,” &c. “ And if judged by the court to be of common convenience or necessity ” &c. In this case the county court appointed a committee “ to view and report the necessity and convenience,” S?c. which committee reported, “ That said alterations would be of public advantage and convenience, and that the same ought to be made.” Which report the court accepted ; and therein and thereby did find and judge said alterations to be of public advantage and convenience, and that the same ought to be made.

From a consideration of all the points in the case, I am of opinion that there is no error on the record, and that the judgment of the superior court ought to be affirmed.

In-this opinion Mitchell, Ch. I. and Reeve, Swift, Trumbull, N. Smith, Baldwi», and J. C. Smith, Js. severally concurred.

Edmond, J.

The original process was a petition by the now defendants in error, to the county court in Fair-field county, for a highway, on which a committee was appointed, their report accepted, and a road laid out. On error brought to the superior court, the doings of the county court were affirmed; and from thence, by writ of error, the case comes here.

Several questions are raised in this case.

1. Whether the original petition is sufficient in law? The 11th section of “ An act for providing, altering, regulating and mending highways,” (tit. 86. c. 1.) gives to the county court jurisdiction, and points out the mode of process; and the validity of their decisions depends on a reasonable compliance with the authority therein given. This act gives to any person or persons, “ where any new highway or common road is wanting from town to town, or place to place, or where old highways may with more convenience be turned or altered, the right to make afifilication to the county court ” and directs the manner of notice. The particular form of the process is not pointed out, but left to stand on the general provisions of the law respecting ordinary civil process, (tit. 6. c. 1. s. 1.) which requires that the declaration shall contain the substance of the actionThe petition, in the present case, does not state that “ a new highway is wanting.” There is no averment, direct or indirect, that the highway prayed for would be of common convenience or necessity ; or, that if laid out, it would be of common convenience or necessity; nor are there any facts, pr set of facts, set forth in the petition, which, if traversed and found true, would, by necessary implication or inference, warrant such a conclusion.

But supposing the facts set out in the petition should. by the utmost admissible latitude of construction, authorize the court to infer that a new highway was in fact wanted, and that laying it would be a matter of common convenience or necessity ; another insuperable difficulty arises in this, case. It nowhere appears from, the record, that any one fact stated in the petition is found by the court, or their committee, to be true.

Where a petition for a highway comes before the county court containing matter of substance, sufficiently set forth to authorize an inquiry, it becomes the duty of the court to inquire into the truth of the allegations, by themselves, or by a committee. This inquiry is to be made, as in every other case, by the examination of competent witnesses, and other legal evidence; and judgment is to be rendered by the court secundum allegata et probata. i

From the record it appears, that the court granted the prayer of the petition so far as to appoint a committee “ to view,. and report the necessity and convenience of the road as prayed for in the petitionThis was the whole of their commission; and in conformity to this appointment, the committee report, that being appointed a committee, &c. “ to view and report the necessity of laying out a new road or highway from the meeting-house in JVew-Canaan to the port in JVorwalk, and having met and viewed the present travelled road, and the ground proposed for a new road, and heard evidence for and against the necessity and convenience of said road, they were of opinion, that a new road laid out from the port in JVor-walk, taking various directions to JVew-Canaan meetinghouse, would be of public advantage and convenience?' This report was returned to the court, and was remonstrated against by the-petitioners. To the remonstrance there was a demurrer and joinder; and the court, after hearing, “ considered and adjudged the remonstrance insufficient,” accepted the report, and appointed another committee to lay out. This report, that in the opinion of the committee a new road laid out, &c. would be of public advantage and convenience, is the only thing found ⅜, and the issue joined on the demurrer is the only issuttf* found, or directly adjudicated upon, that appears on the record; and on this point, the court were undoubtedly correct.

Inasmuch, therefore, as the petition is insufficient for ■want of substance: inasmuch as none of the allegations in the petition have been found to be true, either by the court or committee : and inasmuch as nothing more has been found by the court or committee, or accepted by the court, as appears by the record, than the opinion of the Committee on a fact not alleged in the petition; I am of opinion, that in the record, process, &c. there is manifest error.

Judgment affirmed.  