Gilchrist, O. J.
The Court of Common Pleas have jurisdiction to cause a road to be laid out in a town, whenever the selectmen shall neglect or refuse to lay it out. Rev. St. ch. 50, § 1. The first question in this case is, whether ’there is evidence of such a neglect or refusal as is contemplated by the statute.
■ When a petition for. a highway is presented to theselectmen, it is their duty to act uponit, and either to lay out the road, or refuse to do so within a reasonable time. The parties interested should be informed of their decision as early as is practicable, so that there .may be no more delay than the circumstances of the case require. Of course the power of the selectmen should in no case be exercised in such a way as to hold out expectations to the petitioners .which , the selectmen never intend to realize, and to induce them to believe that the road will be laid out,- when the object of the board is to defeat it. The selectmen have no more right to bring their wishes as individuals to bear upon the question, than has any other tribunal which is invested with authority over the rights of others. They have a right to exercise their judgment, and to refuse to lay out the road. But as it is their duty to exercise their judgment, they have no right to neglect this duty, and to omit making a decision. But if such an omission appear, the Court of Common Pleas have the power to apply a remedy. .
In the present ease, the selectmen suffered the matter to remain pending before them from the 4th of December, 1848, to the 7th of July, 1849. In the intermediate period they examined the ground, but on the day last named, they separated without any adjournment, and without any record having been made of their -proceedings upon the books of the town. . Now they did not refuse to lay out the road, they did not notify the petitioners that their application was rejected, but they permitted the proceedings to come to an end, without declaring.any deci- sion whatever. This, we think, is clearly such a neglect on their part as the statute contemplated, and as gives the Court of Common Pleas jurisdiction over the subject-matter.
The next question is, whether the subsequent- action of .the town of Swanzey can oust the court of its jurisdiction. It appears thatthe selectmen were notified of this petition , to the court, on the 10th day of August., On the 3d of September, they met without any notice to anybody, and laid out a highway,. and caused it to be recorded. It- would seem, that they suddenly awoke to the importance of the matter, and the business which for eight months they had omitted to attend to, was hastily disposed of, as soon as they found that it was to be brought before the court. But the court had already acquired jurisdiction, and the final laying out of the road, the object of which at that late day would seem to have been the defeat of the petition pending in the Court of Common Pleas, cannot take away the jurisdiction which the law had thus conferred. There must be, therefore, a judgment of acceptance upon the report of the commissioners.
Report accepted.