3 N.H. 459 | Superior Court of New Hampshire | 1826
delivered the opinion of the court.
We will in the first place examine the nature of the way laid out in the year 1811, by the selectmen of Lempster, through the locus in quo ; because, if at the time of the break
It is urged in behalf of the plaintiff, that the way thus laid out by the selectmen, being expressly for the benefit of Harris Bingham, became extinct when he died; and that neither his heirs, nor his assigns, nor any other persons, have any right, since his decease, to pass through the locus in quo by virtue of the doings of said selectmen. In order to a»certain if this be sound law, it will be necessary to examine attentively our statutes on the subject of laying out highways.
The provincial act of the 5 Geo. 1. chap. 98, sec. 2. enacted, “ that at any time hereafter, when there shall be occasion C( for any new highways to be laid out, &c. the selectmen u of such town, making application to the court of quarter “ sessions,shewing the necessity and conveniency of the same,. “ the quarter sessions are hereby empowered to appoint a £‘ meet committee to lay out such highways, &c. and order “ that due satisfaction be given by the town, &c. to the par- “ ty through whose land such highways shall be laid.”
The third section of the same act enacted, “ that, the se-u lectmen of each town, within this province, are hereby “ empowered, &c. to lay out particular and private high- “ ways, for such town only, as shall be thought necessary, “ making due satisfaction for thé same to the owners or pro- “ prietors of the lands, through which such highways shall gO,'15
And in the fourth section it was further enacted, “ that “ the selectmen of each town, &c. are hereby empowered “ to lay out or cause to be laid out particular or private high- “ wrays, between any of the inhabitants or proprietors, &c. “ so as no damage be done to any particular person or his prop- “ erty, without due recompence to be made either by the “ town, if concerned, or such of the inhabitants and propri- “ etors, who derive and reap the benefit of the same.” Prov. Laws 153-4.
The highways laid out under this statute might be divided into three species, viz. 1. highways laid out from town
No great reliance is perhaps to be placed upon the particular terms used in the provincial acts. But it may be worthy of remark, that the word, highway, is applied to all the kinds of ways, mentioned in this statute ; and, it is believed, that word has never been used to denote any other ways, than those common to all.
Thus stood the law previous to the passing of the statute of February 8, 1791, which is a revision of all the statutes on the subject, and which enacts, l! that at any time hereaf- “ ter, when there shall be occasion for any new highways or “ private roads to be laid out in any town or place in this “ state, the selectmen of such town or place be and hereby “ are empowered, on application, &c. to lay out the same, “ whether such highway or road be for the benefit of the “ town or public in general, or for the benefit of the “ person or persons applying only; and if such road be for u the benefit of the town or public, due recompence shall
“ And in case there be occasion for any new higinvay, to he laid out from town to town, &c. the court of general “ sessions of the peace, for such coun'v, on petition, &c. “ shall, in such manner as they shall think proper, lay out “ the same.”—1 N. H. Laws, 385.
The same three kinds of roads are mentioned in this statute, as in the.Provincial act. But the roads, to be laid out by the selectmen of towns, are here called “. new,highways,” or “ private roads.” The truth is, that all roads, laid out by selectmen, have always been called, both here and in Massachusetts,, private ways. 6 Mass. Rep. 7, Cragie vs. Mellen.-Mass. statute of 17S6, chap. G.—Mass. Prov. & Col. Laws 126.
.But that the right of passage is not considered as private-in such ways, in Massachusetts, is clear from the language of the court in Cragie vs. Mellen, and from the case of the commonwealth vs. Gowen, 7 Mass. Rep. 378, where it is decided, that an indictment for a nuisance erected upon a town way might be maintained.
And no doubt is believed ever to Have been entertained in this state, that a town was liable to be indicted for not repairing a town way. .
And we are of opinion, that in ways laid out by selectmen for the particular accommodation of individuals, under our present statute, the nature of the easement is not different from what it is in highways laid out for the benefit of towns. When once laid out, every person having occasion has a right to use them, if it were not so, they would of teube of little benefit to the individual,for whose use they were made.
In Hie case now before us the road was laid out from a public highway to the house of Harris Bingham. It can hardly be imagined, that he would have procured a road three rods wide, have paid to the owner of the land,through which it was
It has been urged, that it could not have been the intention of the selectmen to lay out a highway, because the record states, that the road was laid out for the benefit of Harris Bingham. But the nature of the easement cannot depend upon the intention of the selectmen, but upon the meaning of the statute, Which gives them authority to lay out the way. It is the intention, not of the selectmen, but of the legislature, that must determine the character of the easement If it were the intention of the legislature, that all ways laid out by selectmen should be highways, the intention of the selectmen could not alter the nature of the way. It is the province oí the selectmen to determine where the road shall be laid out, its width, and perhaps, whether it shall be an open road, or inclosed by gates or bars. But it cannot be conceded, that they can limit the use of a way, they lay out, to an individual.
Nor can we accede to the interpretation, which the plaintiff’s counsel has given to the record. It states, that the road is laid out for the sole benefit of Harris Bingham ; and it has been argued, that being laid out for his sole benefit, it must have been laid out for his sole use. But it seems to us, that the word benefit was not employed as synonymous With use, but as synonymous with accommodation. The selectmen call the road laid out a “ highway,” and order the damages sustained by the owner of the land to be paid by Harris Bingham ; and in order to justify this order, they state in the record, that the road was laid out for his sole benefit; by which they most manifestly mean,that the way was laid out solely for his accommodation,and not because the accommodation of the public required a road to be laid^out. Such being in
It is also objected, that if these roads are decided to be highways, towns will be liable to keep them in repair. This is admitted ; but they will not be compelled to repair them any further, than the accommodation of the public requires; and to that extent there seems to be no reason, why they should not be liable. Plaintiff nonsuits.