Hooksett v. Amoskeag Manufacturing Co.
44 N.H. 105
N.H.
1860
Check Treatment
Bartlett, J.

When a highway is laid out in a town over the land of any individual, he in general remains the owner of the fee in the land subject to the highway. By the laying out there is taken from him “ a right of way for the public,” that is, a right for any individual of the public to pass, and also a right to put and keep the land over which the highway is laid in suitable condition for the public travel. This latter right is vested in the town by the law, which imposes upon it the duty of making and maintaining the highway, and consequently, by implication, gives to it every thing necessary to the performance of that duty. By virtue of this right the town may make such embankments and excavations upon, and annex such structures to the land over which the highway is laid, as may be necessary to the construction of a suitable path for the public travel. As the town is bound to maintain and preserve such embankments, excavations and structures, so far as they are necessary to the public safety and convenience in the use of the highway, it acquires or retains an interest or ownership in them, as an indispensable requisite to the performance of this duty; and as the highway may exist for an indefinite time, the interest and ownership may be permanent. This interest of the town in the roadway, bridges, &c., constructed by it for the highway, is said to be qualified ; because the materials generally are annexed to or are part of the land of another, who will have the entire right to the land whenever the highway ceases to exist, and, also, because of the public use to which such roadway, bridges, &c., are subjected, and *110for which they were constructed. But, while the highway exists, the land-owner has no ownership in the highway or bi’idge, as such. He may own the soil subject to the highway, but he does not own the highway. Nor has that indefinite body, termed the public, any ownership in the highway or bridge. There exists a public right of passage upon them,- but this is merely a right for any individual having lawful occasion to pass over the highway to use them for that purpose. If neither the land-owner nor the public have any ownership in the highway, as such, there can be no other owner of it than the town ; and in the present case we think the town of Hooksett, even though it may not have owned or possessed the land, was well enough set out in the various counts of the declaration as the owner and as the possessor of the highway and bridge in question, at least as against mere wrong-doers, such as upon the verdict the defendants must be taken to have been. ' Troy v. Cheshire Railroad, 23 N. H. 83, and cases cited. These views seem to us supported by analogous cases of turnpike, railroad, and bridge corporations.

The case of Peck v. Jones, 1 Conn. 103, which is relied on by the defendants, is not, we think, in point; for there the court, after construing a particular deed, merely decided that the fee in the land over which the highway was laid was in the land-owner, and that he might maintain trespass .against a wrong-doer who was in occupation of the land. A manuscript copy of the opinion of the Supreme Judicial Court of Massachusetts in Central Bridge Corporation v. Lowell, Middlesex County, June Term 1860, lias been shown to us. In that ease it seems the city of Lowell, agreeably to the laws of the State, had taken and laid out for a town way the bridge erected by the petitioners, under their charter from the State. The principal question before the court was, wrhat rule of damages would give the petitioners a just compensation for the property taken, where their right “ in the franchise, including the right to take tolls, and the bridge and all its fixtures as incident thereto,” was determinable and redeemable in certain modes fixed by the laws of the State. ¥e do not understand this case to be an authority for this position of the defendants.

The defendants object that the instructions of the court allowed the plaintiffs to recover for the value of the bridge. Whether such instructions would have been correct in the present case we need not inquire; for the effect of the instructions given was, that the defendants were liable, if at all, for all the damage which the plaintiffs had suffered in the loss of the bridge. These instructions seem to us correct. If the defendants had desired to raise the question suggested, they should have asked for more specific instructions as to how that damage was to be estimated. Wright v. Boynton, 37 N. H. 22.

Although their charter might protect the defendants from an indictment for nuisance, it gives them no right to throw back the water upon the lands of others to their injury ; and for such flow-age the defendants are liable, notwithstanding their charter. Ang. on Water-courses, sec. 476; Crittenden v. Wilson, 5 Cow. 165; Peti*111tion of Mt. Washington Co., 35 N. H. 134; Thaxter v. Bridge, 18 Pick. 503. We think that, so far as may be necessary to the maintenance of the bridge, the rights of the plaintiffs are no less than those of the land-owner, as the plaintiffs took from him such rights by the laying out. If the bridge was destroyed by wrongful flowage caused by the defendants, it seems to us that the plaintiffs are as much entitled to recover as if their bridge had been destroyed by any other wrongful act, such as the careless or negligent management of logs driven in the river. Sewall’s Falls Bridge v. Fisk, 23 N. H. 172. The only right to throw back the water upon the plaintiffs’ bridge, stated in the case to have been set up by the defendants, was under their charter ; but we should infer from the instructions of the court that there was some evidence upon which the defendants claimed a prescriptive right for such flowage. If there was not, the remark of the court as to prescription was merely immaterial, and could not have been prejudicial to the defendants. If there was such evidence, the defendants have no cause to complain of this remark, for it was only a statement that if they had acquired no right by prescription they were liable for the injury caused to the plaintiffs’ bridge by the flowage. No other justifications of the flowage were attempted ; and if the defendants had no prescriptive right to throw back the water, as their charter gave them no such right, the flowage complained of in this suit was wrongful as against the plaintiffs, who were injured by it; and it is immaterial, so far as the defense to this action is concerned, when the defendants first began to flow the land where the bridge was situated. But the defendants suggest that, under the instructions of the court, they would have been liable if they had been the owners of the land on which the bridge was erected. "Whether they would have been liable under those circumstances we need not inquire, for no such case "is presented by the evidence. Gerrish v. Newmarket Co., 30 N. H. 478. The defendants seem to have abandoned their last exception, and, we think, properly. The wrongful flowage was the proximate cause of the injury to the plaintiffs, which would not have occurred but for that; and, therefore, although other causes, for which the plaintiffs are not in fault, may have contributed to the result, the defendants are liable. Littleton v. Richardson, 32 N. H. 63 ; Winship v. Enfield, 42 N. H. 215; Cowles v. Snow, 24 N. H. 383. There must be

Judgment on the verdict.