The opinion of the court was delivered by
Kellogg, J.It is insisted by the complainants, that the proceedings in the court below were prematurely commenced, inasmuch as the time fixed by law, when the road was to be open for work, had not arrived, when Tarbell presented his petition to justice Blodgett and procured the appointment of commissioners to assess his damages' ; and that for this error the proceedings before the justice should be quashed.
The time fixed by the selectmen, when the road should be open. *456for work, was the first of December, 1844. It was the earliest period, which, by law, the selectmen could fix for that purpose, it being six months after the survey. Whether this exception is well taken must depend upon the construction of that clause of the statute, authorizing proceedings upon petitions for the re-assessment of damages. The statute provides, “ That if any person interested in lands, through which a highway shall be laid out or altered by the selectmen, shall not.be satisfied with the sum offered, or if no sum shall be offered, and if the parties shall not agree to refer the same, he may, within sixty days after the highway shall be opened to be worked, and not after, apply to a justice, by petition in writing,” &c., “ to appoint commissioners to appraise the damages.”
We are not aware, that the question arising in the present case upon this section of the statute has ever been decided by this court. But the case of Emerson et ux. v. Reading, 14 Vt. 279, is believed to be somewhat analogous. It was a proceeding similar to the present, and upon a statute somewhat like the one, under which the present proceedings were had. It was held, in that case, that no proceedings could be taken under the statute by the land owners, to have their damages appraised, until sixty days after the road was opened by the selectmen; and that, until the road was opened, the justice had no jurisdiction of the subject. Applying the reasoning of the court in that case, to the case under consideration, it would seem to lead to the result, that the proceedings taken by the defendant before the justice, for the appraisal of his damages, were premature and unauthorized by the statute, and that the justice had no jurisdiction of the subject. Indeed, we think it very obvious, that the statute contemplates, that the towns shall have the whole period, up to the time when the road is ordered to be opened for work, to arrange and settle the question of damages with the land owners; and, upon the failure of the selectmen to do this, a period of sixty days thereafter is given to the land owners, to apply to a magistrate for the appointment of commissioners to appraise their damages. The proceedings before the justice were premature and erroneous.
It is farther urged, that there was error in the proceedings, in this, that, inasmuch as the selectmen and Tarbell had, by mutual agreement, submitted the claim for damages to referees, who had awarded *457that Tarbell was not entitled to any damages, no commissioners should have been appointed, or farther proceedings had in the premises.
This award, for aught that appears, was valid and binding upon the parties. It was competent for the selectmen and Tarbell, by mutual agreement, to settle the question of damages by a reference, pursuant to the provisions of the statute, at any time after the survey of the road, although the same had not been recorded. The want of a record of the survey would not render the award invalid. It was therefore error to disregard the award of the referees made in the case. And for these errors the proceedings before Mr. Justice Blodgett must be quashed.