Terry v. Town of Waterbury

35 Conn. 526

• Court: Supreme Court of Connecticut
• Decided: February 15, 1869
• Status: Published

Opinion

Carpenter, J.

This is a petition for a highway. The respondents, by way of answer, set up the proceedings and the judgment of the court in the case of Hoadley et al. v. Town of Waterbury, 34 Conn., 38, as a bar to the present suit. The replication sets up various matters which the petitioners claim should prevent the former judgment from being a bar. The allegations in the replication are denied by the respondents.

The finding of the court establishes the following propositions. The route of the present proposed highway is substantially the same as that asked for in the former petition A The present petitioners, though not parties to the record in the former proceeding, are a part of the same local public with those who brought the former petition, and had the same interest in the result of that as the present, excepting a liability to cost, and all or most of them were witnesses in support of the former petition. Something more than a year elapsed between the final determination of the former case and the commencement of the present one. Since the determination of the former case the public act referred to in the replication was enacted, and the present' petitioners are ready and willing to offer in evidence a bond according to the provisions of that act, indemnifying the town against any loss from the construction of the proposed highway exceeding the sum of four thousand dollars. It is also found that on the trial of the former petition the amount of the expense of constructing the road prayed for was a material and controverted fact between the parties, and that a bond similar to the one contemplated by the statute was offered in evidence and rejected by the committee.

These are substantially the facts relied upon to relieve the present case from the operation of the doctrine of res adjudicata. Whether they are sufficient for that purpose is the question for our determination.

In Webb v. Town of Rocky Hill, 21 Conn., 468, it was decided by this court that the doctrine of res adjudicata was applicable to petitions for highways, at least so far as to make it incumbent upon a party who would avoid the effect of a former judgment to show new matter accruing since the rendition of such judgment. The new matter referred to means something more than a mere change of the law. The issue in these cases is one of fact, and not of law. If there is a material and substantial change in the facts upon which the issue depends, the former judgment ought not to be a bar ; otherwise it should be conclusive. In view of these principles let us examine the case before us.

The route prayed for must be regarded as the same in both cases. The court finds that “ the route of the present proposed highway is not precisely identical with, but is substantially the same as, that asked for in the petition of Hoadley and others.” The question involved is identical in both cases, to wit, the common convenience and necessity of a highway in that locality. A slight variation of the route does not destroy its identity.

Nor is the fact that the present petitioners were not parties to the record in the former case of any importance. They were a part of the same local public, and as such interested in the question, and appeared as witnesses in behalf of the petition. They might, had they chosen to do so, have been parties to the record. It was a matter of public concern, and they had ample opportunity to be heard. The whole proceeding was in the nature of a proceeding in rein; and so far as the judgment was binding on any it was binding on all. Any other view of it would involve towns in endless litigation.

Mere lapse of time in this case furnishes slight evidence, if any, of a change of circumstances. This point is not much pressed, as the petitioners rely chiefly upon the statute.

The statute provides that parties interested in a petition for a highway may execute a penal bond with surety, payable to the town or towns concerned, conditioned that the obligors shall contract the proposed road, or secure the rights of way therefor, for a given sum, and that such bond shall be admissible in evidence, and be regarded as legal and valid, and as legally affecting the question of common convenience and necessity. Whether this statute is new matter, which will justify us in opening this matter for further litigation, is the main question in the case. A majority of the.court think it is not.

The statute simply makes the bond admissible in evidence. It does not say what weight shall be given to it. That is left to the sound discretion of the triers. It may have more or less weight, or none at all, according to the circumstances of each particular case. What effect such a bond ought to have, in a case like this, does not appear. It is averred in the declaration that if such a bond had been binding, and could have been received in evidence on the former trial, the committee would have found the proposed road to be of common convenience and necessity. But this averment is not found true by the court. So that, so far as we are permitted to know, the effect of the statute is limited to making that admissible in evidence which before was inadmissible. Such being the purpose and effect of the statute, it is apparent that the petitioners rely on the fact that the legislature have made that admissible in evidence which could not be used as such in the former petition. And it is also apparent that this application is, in effect, an application for a new trial on that ground. But no case can be found where a new trial has been granted on the ground that the law regulating the admission of evidence had been changed after the former trial. No new trial can ever be safely granted on that ground. The inconvenience and mischief which would result from such a precedent are too obvious to require comment. These considerations are conclusive of our duty.

But there is another view of this case which is equally con- Í elusive against the petitioners. The town of Waterbury had obtained a favorable judgment. In that judgment they , had a vested right. Even if it should be admitted that the legislature had the power to destroy that right by legislation, it would be so manifestly unjust that we should expect an intention to do so to be expressed in clear and unmistakable language. No such intention is expressed in this statute. On the contrary, the legislature were so careful of existing rights that they provided that the act should not affect any suit then pending. If therefore the former case had been pending at the time of the passage of the act it must have been proceeded with in all respects as if the act had not been passed. If such had been the case it would ; hardly be contended now that the judgment would be rendered inoperative by the passage of the act. Now if the legislature did not intend that a pending suit should be affected by the act, it certainly will not be presumed that they intended to destroy the effect of a judgment already rendered. We do not think, therefore, that we ought to give to this statute the effect contended for.

Wo advise the Superior Court to render judgment for the respondents.

Iii this opinion Butler, J. concurred. Park, J. dissented. Hinman, O. J., being disqualified by interest did not sit.

Park, J.

I agree with the majority of the court, that the highway prayed for in this case is substantially the same as the one prayed for in the petition of Hoadley and others v. Town of Waterbury, 34 Conn., 38, and unless the facts have materially changed since that case was heard by the committee, this case is res adjudicata. But it seems to me that the statute of 1867 brings into this case an important element that did not exist in the former case. The statute virtually declares that if the petitioners shall give the bond in accord anee with the statute, as they propose to do, and for the purposes of this case we must presume they will do, the committee are to consider that the cost of constructing the proposed road will not exceed the sum of four thousand dollars. They are to regard the case precisely asif, since the former case was tried, some invention had been made that would excavate rock with such facility that four thousand dollars now would construct the proposed road, which would have cost' fifteen thousand dollars when the former case was tried. If such had been the case no one could doubt but that the facts surrounding the present case would be materially different from those that existed when the former case was heard'. Is not this the view that the statute intends that the committee should have taken of the case had it gone before them ? It was a fact in the former case that the construction of the proposed road would cost the public the sum of fifteen thousand dollars. It is a fact in the present case that the cost of construction to the public would be but four thousand dollars. This change is made, not by evidence estimating the expense at the latter sum, but by the bond reducing the expense absolutely to that amount. The case is the same as though some law of nature had intervened rendering it impossible for the road to cost the public more than that amount. Suppose that, since the former trial, the petitioners and others had expended the sum of eleven thousand dollars in the construction of this road, so that four thousand dollars would now complete it, would the case to be tried by the committee be variant in any particular from what it is now ? Suppose the • law had expressly provided that after its passage no town should be required to expend a greater sum than four thousand dollars in the construction of any highway laid out by the Superior Court, and the rest of the expense, if any, should be borne by the petitioners, they giving ample security to pay before their case should be heard. Could a doubt be entertained that the law would change the state of things in respect to this proposed road? Such is substantially this case. The majority of the court consider the law as merely creating new evidence, and that the petitioners are seeking to retry the former case because the legislature has made something evidence that did not then exist as such. Evidence of what ? Evidence merely informs the court of the existence of facts. It is merely the means of communicating intelligence. What fact existing in the former case does this newly created evidence tend to prove ? The expense of constructing the proposed road would be as great now as it was then. If the expense then would have been fifteen thousand dollars, could the proof of any fact whatever then existing have made the expense less to the town of Waterbury than that sum? The contest between the parties then was, how great would be the expense of constructing the road. The statute pays no regard to the actual expense of construction. It virtually declares that in view of the bond, no matter how great the expense may be, no matter whether it will cost fifteen or fifty thousand dollars, the expense to the public shall not be greater than four thousand dollars, and the committee shall consider the case upon that basis. They shall consider whether pr.not common convenience and necessity requires an outlay on the part of the public of that sum. The statute does not pretend to be evidence of any fact, but it comes into the case and creates an all important fact that did not exist on the former trial.

It seems to me that these considerations show conclusively that the view taken of the law by the majority of the court cannot be maintained.