It appears, from the finding of the county court, on the seventh ground of remonstrance, that, when the petition in this case was brought, the borough of Danbury *203had commenced proceeding with the steps, requisite by its charter, for the purpose of laying out a part of the highway, which is prayed for in said petitionand that afterward, and before the county commissioners had acted on this petition,' that part of the highway had been legally laid out, and established as a highway. These steps, on the part of the borough, were public proceedings, and must be presumed to have been known to the petitioners, and the commissioners. Whether, it would .have been proper or not for the commissioners to lay out the whole of the highway ¡prayed for, if these steps had not been commenced by the borough, previous to the bringing of this petition, we are of opinion that, after those proceedings of the borough had been commenced, the petitioners could not, by bringing this petition, neither could the commissioners, arrest or supersede the proceedings of the borough, and that it was the duty of the commissioners to refrain from laying out, as a highway, that part of the highway, prayed for in this petition, which had already become a lawful highway by the proceedings of the borough; and that the laying out of that part of it constituted such an irregularity on the part of the commissioners, that the county court acted correctly in refusing to accept their report. If, in any case, it would be competent to lay out a highway where there is already an existing one, it is obvious, in the present case, that it was not only entirely unnecessary to do so, but that the effect of it would be to subject the borough to pay double compensation to the owners' of the lands over which it was laid out, which the latter would have no right to claim, and which would be manifestly unjust. - In rejecting the report of the commissioners, there was therefore no error.
But the county court, on setting aside that report, rendered a final judgment against the petitioners, and that the respondents should recover their costs. In this there was error. The proper course was to recommit the petition to the commissioners, for their further action on the subject; because, *204although, as to a part of the road prayed for, they could properly proceed no further, in consequence of its having been laid out by the borough, they might be of opinion, as to the remaining part, that the special convenience of the borough required that it should also be laid out as a highway, and the petitioners were entitled to be heard on that question. And we do not think that any special motion, by the petitioners, for such recommitment, was necessary. The case is analogous to that of a report of auditors in an.-action of book debt, where, if it is set aside on a remonstrance, the court, of course, recommits the case to the same, or appoints new auditors ; and a similar course should have been taken in this case.
On this point, the judgment of the county court is erroneous, and the superior court is so advised.
In this opinion, the other judges, Waite and Hinman, concurred.
Judgment reversed.