Simmons v. Town of Eastford

Butler, J.

The petitioners seek to obtain a new highway between certain termini, and upon a certain route in the town of Eastford, where, until recently, a public open highway has existed, alleging that said highway has been discontinued and closed by the selectmen with the approbation of the town. It is objected among other things by the respondents, that no legal discontinuance of the highway, formerly open between the termini, was effected by the action of the selectmen and town, because such action was unauthorized and void. We are satisfied that the objection is well founded and must prevail ; and that the petitioner must seek x’elief by other proper proceedings, to compel the town to re-opexx and repair the existing highway.

The selectmen of towns, ixx discontinxxing highways, are the agents of the law, and caxx exercise xio powers except such as are expressly conferred by statute. The 23d section of the statxxte eoncenxing highways confex's such power upoxx them ixx certain specified cases, when the highway may have been laid out ixi a particular manner, “ or iix any other manner, except by the county court or the general assembly.” It is apparent *289 that the authority thus conferred is limited in the clearest manner by the exceptions made, and the power conferred on the courts, by the 31st section, to discontinue in the excepted cases; and that this limitation is necessary to prevent a conflict of action between the selectmen and the general assembly or the courts.

The highway which it is alleged was discontinued, was laid out by the Boston Turnpike Company, under special authority from the general assembly, and until 1850 was under the supervision of the legislature, exercised by commissioners annually appointed. In that year an agreement was made between the turnpike company and the town of Eastford, by the terms of which that town assumed the burden of thereafter maintaining the road; and that arrangement was confirmed by a resolution of the general assembly, predicated upon a petition of the company reciting the agreement, and the road, by the same resolution, was discontinued as part of the turnpike. But it clearly was not the intention of the company, the town, or the general assembly, that it should cease to he a highway; nor did those proceedings change its original character, as a road laid out by special delegated authority of the legislature, and take it out of the excepted cases; nor is there any thing in the resolution which can be construed into an intention to change the power to discontinue in the particular case from the courts to the selectmen.

It is evident, therefore, that the old highway has not been legally discontinued, but still exists, and that the superior court must be advised that the petition is insufficient and must be dismissed.

In this opinion the other judges concurred.