All petitions relating to highways are required to be referred to the commissioners of the county in which the proposed highway is situate, except where it may pass over lands in two or more counties. Gen. Stats., ch. 63, sec. 4. In such cases only does the statute (sec. 5) require the petition to be referred to the commissioners for all such counties. By ch. 62, secs. 10-12, provision is made by which the town in which a proposed highway is situate may present its petition to the commissioners, setting forth that the expense of such proposed highway would be excessively burdensome to it, and that another town named, in the vicinity, would be greatly benefited thereby, and praying that part of the expense may be borne by such other town. The commissioners are thereupon required to notify such other town, and afford it an opportunity to be heard upon the question of laying out the highway, and of its contributing to the expense; and they may assign such reasonable part of the expense as they think just, to be paid by such other town.
No provision is made for referring a petition to the commissioners of more than one county, except in the case where the road prayed for lies in more than one county. As this proposed highway is situate wholly within the limits of Belknap county, the petition was properly referred to the commissioners for that county, and the court manifestly had no power to refer it to the commissioners of Belknap and Grafton counties. If the legislature had intended that the commissioners of both counties should sit in a case like this, — where, during the hearing, the town within whose limits the proposed highway is situate, may ask that some other town in the vicinity, but in another county, be required to bear a portion of the expense, — it has failed to say so, and has also failed to make any provision by which the petition may be recalled from the commissioners of the county to which it was in the first instance referred, and be committed to the commissioners for both counties. The failure of the legislature to so provide, when considered with the express provisions of the statute above cited, makes it quite clear to my mind that it did not intend to confer jurisdiction in such a case upon the commissioners of more than one county.
But as the first exception, that the road laid out is not the one prayed for, is well taken, the report must be set aside.
First exception sustained. *Page 336