In re Marlborough

| N.H. | Dec 15, 1864

Bartlett, J.

A decrease in the means of a town, after a highway has been laid out, might in some cases constitute such a change of circumstances as would warrant a discontinuance of the highway; for the urgency of the public need and the amount of the accommodation which the highway would afford, might not be sufficient to justify the imposition of the burden on the town. Winship v. Enfield, 42 N. H. 206; Dudley v. Cilley, 5 N. H. 561; Petition of Goffstown, 43 N. H. 200.

Here the commissioners have not found such a state-of facts, for they merely report, that, since the laying out, the town has become so involved in debt that the building of the road would be burdensome; and this may be true, and yet the public good may require the imposition of the burden. Nor do the commissioners state the facts showing that by reason of the debt incurred since the laying out, the burden on the town would be so increased as to affect the expediency of laying out the proposed highway. Perhaps, however, if this were all the reason given, as it might be sufficient under some circumstances, the court would not revise the decision of the commissioners. Petition of Hopkinton, 27 N. H. 139. This is not, however, a reason conclusive as to the propriety of a discontinuance, like the construction of roads found by the commissioners to obviate the necessity of the proposed highway, as in Hampstead’s Petition, 19 N. H. 349, and another matter is stated as 'one of the reasons which induced the commissioners to-report in favor of a discontimrance.

If we were to assume that there might be such a change of circumstances as would require a new highway obviating the necessity of the one in question, and that this might properly be considered by the commissioners, still we could not hold that the facts stated in the second reason constitute any change of circumstances within the 69 th rule of court. The mere fact of the pendency of a petition for a new highway has no bearing upon the expediency of laying out the highway in question ; and a petition for a particular new highway is no more evidence of its necessity than a writ is evidence of the debt declared on; and the reference of the petition does not alter the case in this respect; Hopkinton v. Winship, 35 N. H. 214; and if these facts are not evidence of the necessity of the new highway, standing alone as they do here, they cannot be evidence of the probability that it ever will be built. But, were it otherwise, these facts would furnish no evidence of such a necessity arising since the laying out, for all the facts bearing upon that question may have existed before. The second reason, therefore, seems to us to state nothing that in itself could be regarded as a change of circumstances, affecting the expediency of laying out the highway, within the meaning of the rule, and as the commissioners have reported in favor of a discontinuance for the two reasons, we cannot say that they would have so determined upon the first alone, Sanborn’s Petition, 33 N. H. 75.

The report must he recommitted.