The bill of *Page 230 exceptions presents several questions which we will consider in the order in which they are discussed on the appellant's brief.
We think the proceeding cannot be held to have come to an end or to have been discontinued by force of the resolution of the town council of Middletown passed April 19, 1875, and filed in court April 21, 1875; though that might perhaps have been the result, if the resolution had been passed and filed before trial and verdict. De Wolf v. Sprague Manuf. Co. ante, p. 133. Under our statute a party has no right to discontinue or become nonsuit even before verdict, after the trial to the jury has begun, without the permission of the court, and a fortiori not after verdict. Gen. Stat. R.I. cap. 202, § 6. So far as appears the attention of the court below was not called to the resolution of April 19 until after it had been revoked. We think the court then very properly refused to allow it to have any effect upon the proceeding.
We do not think it was essential to the validity of the proceeding that the committee appointed to mark out the proposed highway should be accompanied by a justice of the peace and a constable or town sergeant named in the appointing order as provided for by Gen. Stat. R.I. cap. 59, § 3. Under the statute, those officers have nothing whatever to do except to accompany the committee, and therefore, if the committee sees fit to dispense with their company we do not see how the land owners are prejudiced. They are merely attendants, useful to preserve order and to assist the committee ministerially in the execution of its office, though not necessarily participant, even ministerially, and consequently no more indispensable to the committee than attendants of a court are to the court. In other words, we think the provision for their attendance is not imperative but simply directory, and this being so, the order of the court below allowing the committee to amend its report was entirely immaterial, doing the appellant no harm, and cannot be assigned for error. The first and second exceptions are therefore overruled.
The third and fourth exceptions raise the question whether the appellant was entitled under his appeal to object to the composition of the committee appointed to mark out the proposed highway on the ground that some of the members were not *Page 231 "suitable and indifferent persons," or was concluded by the decision of the town council. We think he was entitled to make the objection. The statute directs the appointment of "three suitable and indifferent persons." It is important that they should be "suitable and indifferent," for they have important duties, judicial as well as ministerial, to perform. They have not only to mark out the highway and cause a plat of it to be made, but to "take care to lay it in such manner as may be most advantageous to the public, and as little as may be to the injury of the owners of the land through which it passes," and to agree, if they can, with the owners of the land for the damages. The land owners are therefore manifestly interested in having them "suitable and indifferent." And the appeal given by the statute is not confined to particular orders, but extends generally to the doings of the committee or town council, so that the entire proceeding may be brought up for re-adjudication on its merits, including every substantive order made by the town council. In the case at bar the appeal was taken to "all and singular the orders, decrees, and doings of the town council," and one of the reasons assigned for the appeal was that the "committee were not suitable and indifferent persons as required by law." We think that under this appeal, the testimony offered as set forth in the third and fourth exceptions should have been admitted, and consequently, that the exceptions taken because it was excluded should be sustained.
The fifth exception must be overruled. The proceeding having been carried up to the Court of Common Pleas by appeal, was there for adjudication de novo upon all the questions of fact which were opened by the appeal, and therefore any testimony relating to the motives which influenced the town council in their decision was inadmissible for irrelevancy, the question for the jury being not whether the highway was necessary in the opinion of the town council, but whether it was necessary in point of fact. Hunter v. Mayor Aldermen of Newport, 5 R.I. 325.
The sixth exception is for the refusal of the court to instruct the jury that if the cost of making and maintaining the highway would not be compensated by the benefits which the public would derive from it, they should declare it unnecessary. *Page 232 Undoubtedly it was proper for the jury in deciding upon the necessity of the proposed highway to consider whether its cost would not exceed its value, and undoubtedly, if they found it would, they might consider it a reason for declaring the highway unnecessary. But if the court explained, as we presume it did explain to the jury, that "necessary" means "reasonably necessary," the cost as well as the benefit being considered, we are not satisfied that it was error to refuse the instruction; for the jury might easily have been misled by it, inasmuch as the cost comes out of the town and the benefits accrue to the public at large, and it is not easy to compare the one with the other and say when the cost to the town would be compensated by the benefits to the public.
The exception is exclusively for the refusal. It is not pretended that the court did not fully instruct the jury on this point in all other respects, or that there was any error in the instructions actually given. The sixth exception is therefore overruled.
The seventh and eighth exceptions are overruled. It does not appear that there was any testimony before the jury to which the instructions requested would have been applicable; but if there was any, the instructions were still properly refused, such testimony being, as we have seen, irrelevant to any issue which the jury had to determine.1
All exceptions except the third and fourth are overruled. The third and fourth are sustained and the proceeding is remitted to the Court of Common Pleas for a new trial.
1 And see Watson v. The Town Council of South Kingston,5 R.I. 562.