By ss. 11 and 12, c. 67, Gen. Laws, any town in this state, situate on Connecticut river, is empowered at any legal meeting to authorize the selectmen thereof to unite with the selectmen or other proper officer of any contiguous town in Vermont, and contract with them for the purchase of any real estate, or the privilege, easement, or franchise of any bridge or ferry corporation, if in their opinion the public good requires a public highway to be laid out over said property, and also to contract and agree as to the proportion of expense to be borne by each town in such purchase, and in the construction and maintenance of a highway over said river, including also the proportion which each town *Page 435 shall contribute towards the payment of damages to third persons in the use of such highway, subject, however, to the approval of such towns.
The effect of these provisions is to apply an essentially different principle in the case of proposed highways between this state and Vermont than obtains in the case of highways generally, which can legally be established only when required by the public convenience and necessity and through the exercise of the right of eminent domain, whereas in highways across the Connecticut river the public welfare is not made a controlling consideration, but the question of convenience and necessity is made the subject-matter of contract to be agreed upon by the parties, and neither directly nor by implication is any power of revision conferred upon the county commissioners or the court. On the contrary, the towns to be connected have full power to act as they may think best, and are made the sole judges of what their interests require; and therefore, while in highway hearings commissioners have exclusive jurisdiction as to the admission and rejection of evidence (G. L., c. 69, s. 8), they have no power to compel the defendants to enter into a contract tendered by Brattleborough in respect to the proposed highway. The authority to make such contract is vested absolutely in the defendants, and they cannot be devested of it except by the legislature. And as the commissioners could legally lay out the highway only on the ground that it was required for the public accommodation, bearing in mind the burden thereby to be imposed on the defendants, no error of law is discovered in their conclusion that the public exigency does not require the imposition of so great a burden upon them.
All the motions are denied (see Freeman v. Plainfield, 52 N.H. 146, 147), and the defendants are entitled to
Judgment on the report.
CARPENTER, J., did not sit: the others concurred.