Knowles' Petition

22 N.H. 361 | Superior Court of New Hampshire | 1851

Bell, J.

The south terminus is well enough described in the petition. It appears there was a stake and stones on the west line of lot No. 55, thirty-four rods from the north-west corner. There was none at fifty-five rods from that corner, as set forth in the petition. This stake and stones was the terminus described and intended in the petition, as the commissioners report. The mistake in the distance is immaterial. If part of the description is incorrect, that part maybe rejected, if there remain other more certain means to fix the point intended. A fixed monument, as the stake and stones in this case, controls both distances and courses. White v. Gay, 9 N. H. Rep. 116 ; Bowman v. Farmer, 8 N. H. Rep. 402.

The Eevised Statutes, chap. 52, § 7, provide, that “ the damages assessed upon the laying out of any highway for the accommodation of individuals, shall be paid by them,” and this road being laid out for the accommodation of the petitioner, it was unnecessary for the commissioners to designate in their report the person by whom the damages should be paid. The agreement to indemnify the town was clearly covinous and collusive. It was the duty of the selectmen to resist the laying out of the road, if the public good would not be promoted by it. Public highways, (and this road, though laid out for the accommodation of the petitioner, is still a public highway,) not only impose upon the towns the duty of constructing the road at first, but that of maintaining them, perhaps forever. The selectmen of towns are not justified as public officers in withdrawing their opposition, by any arrangement which is limited to relieving the town from the present expense. They are bound to resist them, on account of the permanent future burden they impose on the town, unless they are required by a just regard to the public good. The effect this improper agreement was designed to have, was to induce the town officers not to do their duty. If they have been quiescent in consequence, the object has been effected. The refusal to lay out this road by the selectmen, when the application was made to them, sufficiently shows what was their view of their own duty in this respect.

It can make no difference, that the commissioners believe their minds were not affected by any consideration of this agreement. It is out of their power to say what effect would have been produced on their judgment by a fair and faithful representation of the objections to this road, which the public interest required should be made.

The report must he rejected.