Conway v. Town of Jefferson

| N.H. | Jul 15, 1866

Sargent, J.

The instructions to which the defendant excepted, were, we think, correct and proper. The point made in the argument, that after the obstructions were proved the burden of proof was upon the plaintiff to show why, that is, for what purpose and with what moitive, the bars were placed across this way, may be correct in principle, but is not raised by the case. If defendant desired to raise that question he should have asked for instructions upon that subject, and, for .aught that appears, they may in fact have been given. The case does not show that any instructions were asked for that were not given, or that any exception was taken to any that were given: and the presumption ás in such case that proper instructions were given.

The motion in arrest of judgment stands upon no better grounds. Judgment will not be arrested because the declaration may have contained some claims that were illegal, if it also contained others upon which the plaintiff might recover. It does not appear that any instructions were asked for in regard to the question of the liability of the town for the coal, nor was any exception taken to any instructions that were given on that point. The presumption, then, is, that the instructions on that point were correct, and if the law was that no damage could be recovered for the coal, the presumption would be that the jury were so instructed and found accordingly. There is nothing in the case or in the verdict that shows or tends to show that the jury included in the verdict anything for the coal. The plaintiff has no occasion to remit any part of the verdict as found by the jury.

But upon examining chapter 57 of the Revised Statutes, and considering all its provisions, we have no doubt that the legislature intended to include in the term team in the first section, the animal or animals that drew or carried the load, whether one or many, or that were driven over the highway, whether in harness or otherwise; and by the term carriage they intended to include whatever carried the load, whether upon wheels or runners, and also that which was carried, whether on wheels or runners, or on horseback. I have looked in vain for legal authorities on the use and construction of these words. But the dictionary, the only authority I have found, justifies, I think, the construction I have given them. See Webster’s Dictionary, Unabridged, edition of 1865, titles Team and Carriage.

But it is claimed here that there must be a dedication of the highway and an acceptance of the same by the town as a public highway, before the town can be held liable for its defects, and that this acceptance must be shown by some acts of the town, which at least indicate their intention to adopt it as an existing highway. This question has been recently considered and determined by this court, in Stevens v. Nashua, (ante, 192,) where it was held that where there is a dedication to the public use by the owner of land, twenty years use of it as a public highway is conclusive evidence of an acceptance, and where there is no such dedication, then such use for that term of time, if continuous and adverse, will be conclusive evidence of a right so to use such highway, not only as against the land owner, but also as against the city or town to be charged with its maintenance and repair. Under the instructions given in this case, the jury may have found a highway by dedication and acceptance, or by prescription, either of which would be sufficient.

Judgment on the verdict.