114 A. 24 | N.H. | 1921
"Highways are only such as are laid out in the mode prescribed therefor by statute, or as have been used as such for public travel thereon, other than travel to and from a toll-bridge or ferry, for twenty years." P. S., c. 67, s. 1. Highways by user "arise from the uninterrupted use of the land for public travel and the continued recognition by the town and the landowner of the right to make such use." Harriman v. Moore,
The conclusion suggested in the superior court was that the town acquired by prescription a highway right, and that the defendant's land in that way became a legal highway. The conclusion cannot be adopted upon the facts stated. A legal highway includes not *133
only the soil, but also all the space above it. State v. Kean,
The plaintiff admits that it has gained no right as to the space occupied by the bay-window, but now claims a right of travel under the window. The question transferred relates solely to the existence of a highway, and the one now suggested is not involved. But as it would be likely to arise upon a retrial of the case, it has been considered.
It may be assumed for the purposes of discussion that the public large (as distinguished from the inhabitants of a particular place, Perley v. Langley,
Whether such a proceeding as this could be maintained by the town in any case, is a question upon which no opinion is expressed. See Bryant v. Tamworth,
Bill dismissed.
All concurred. *134