The opinion of the court was delivered by
Veazey, J.This is a petition to discontinue a highway that has been laid out and established, but not built. The petition alleges that since the road was established in the former proceedings, a more feasible, easier, shorter, and less expensive route has been discovered for a road to connect the same points and accommodate the same travel, than the one so established, and alleges in what respect this general averment is true. A committee was duly appointed, and have made a report showing with marked clearness that these allegations of the petition are true. On the facts reported, the County Court adjudged, as matter of law, that the petitioners were not entitled to maintain their petition and have the report accepted, and for that reason dismissed the petition ; to which the petitioners excepted. The argument in behalf of the defendants is, that the matters involved in the present proceedings are res adQudicata, and the petitioners are estopped from bringing them again into court. The argument is based on the assumption that this proceeding must stand or fall under the same rules that pertain to a common-law action. Herein the argument is at fault. In so far as the courts have any duty or-power devolved upon them in respect to laying out and discontinuing highways, it is derived from the statutes. This duty and power is of such character that it should be performed and exercised in a practical manner, not by technical rules. These highway petitions are, in view of the nature and purpose of the inquiry, addressed largely to the discretionary power of the court. They are based on an alleged public as well as individual necessity and convenience. They involve the imposition or relief of a public burden. Where the subject-matter of the petition is the same as that involved in a previous inquiry and determination, and it is reasonably apparent that it is brought simply to get another trial, without any new light, we should expect that the County Court *82in the exercise of its discretion would dismiss the petition, and not appoint commissioners; and we think that the court would generally have but little difficulty in getting at the good faith and propriety of the petition. If such good faith and propriety are denied by any of the parties in interest, they should raise the question before commissioners are appointed.
What legal error has there been in these proceedings that would warrant a dismissal of the petition ? The petitioners came into court under the authority of the statute. Their petition presented a case of great merit on its face. The County Court upon such investigation as it saw fit to make, having the power, appointed the commission. Since then the usual proceedings have taken place, resulting in a demonstration of the merits of the petitioners’ case. In all this we fail to discover any illegality. It is insisted as a ground of dismissal that this investigation has developed no new fact, no change in the situation, since the former investigation ; that this same shorter, easier, cheaper, and better route was there then, the same as now. In a matter of this kind, a sufficient answer to this claim, if any is needed, is found in the fact that the new route has been discovered since the former inquiry. We do not think this is a kind of proceeding for invoking, in its common-law strictness, the doctrine of estoppel and laches and res adjudícala. This is not necessary either for the protection of the court against imposition or for the advantage of ending litigation. We understand that the views here expressed conform to the practice of the courts in the past, and are not informed that any of the apprehended troubles suggested by counsel have been encountered. Notice the hardship, not to say absurdity, to which a dismissal of this petition would lead. Since the road was laid out but before a dollar is expended on it, another route, shorter, having better grades, cheaper to build, less expensive to keep in repair, accommodating those having occasion to use it much better than the other route would, has been found. By reason of a. technical rule of the common law brought into this statutory proceeding, in the administration of a public mat' ter, we are asked to say to the tax-payers of Sheffield, You cannot be relieved of this mistake that has been made in locating *83your road, but must forever endure tbe inconvenience of a longer and harder road, and must not only pay the increased cost of building, but must forever bear the additional expense of repairs required for the old route over what would be required for the new one. Such a decision would involve the idea of permanency in our highways not heretofore entertained. We do not think the law of Vermont compels us to announce any such rule, and we do not feel bound to borrow it from our neighbors, if they have such an one.
Judgment reversed, and cause remanded.