35 N.H. 574 | N.H. | 1857
This action is founded on the act of July 1, 1853, entitled “ An act relating to railroad crossings,” by the first section of which it is provided, That all railroad corporations, crossing any public highway in this State, shad construct and maintain, under such railroad, passes for the accommodation of the public travel, in all cases where an embankment or the track of their railroad is nine feet or more in height above the original public highway, as it was used at the time of locating such railroadand is brought to recover the penalty, alleged to have been incurred by the defendants, by reason of their having neglected, for the period of four months after notice in writing to that effect, to construct such under-pass, for the accommodation of the public travel upon a public highway in Northumberland, across which their railroad is alleged to be constructed.
In order to maintain the action it is, in the first place, essential for the plaintiffs to establish the fact of the existence of the alleged public highway at the point of intersection. If no such highway be shown to exist, no negligence can have happened and no penalty have been incurred.
The preliminary question, therefore, and the only one we have found it necessary to consider, is, whether, upon the facts stated,
The proper construction to be given to this section, came before the court in Haywood v. Charlestown, 34 N. H. 23; and it was there expressly held, that since its enactment no-highway will be presumed to hawe been legally laid out unless it has been used by the public as a highway for at least twenty years; that where the road has been used for a less period, it is incumbent upon the party alleging the existence of a public highway, to show that the statute requirements have, in all essential particulars, been complied with in its establishment.
In that case, which was an action to recover damages for an injury alleged to have arisen from a defect in the road in controversy, the subject of laying the same out was first brought before the town at a legal meeting called for that purpose, and was, by vote of the town, referred to the selectmen. Thereupon the selectmen, without any petition asking therefor, proceeded and laid out the road, awarded damages to the land-owners, and made return of their doings to the town-clerk, by whom they were recorded. Subsequently the town paid the awards of damages to land-owners, constructed the road, refused, upon application and an article in the warrant for that purpose, to
The circumstances of the present ease are by no means so strong in favor of presuming or inferring the legality of the alleged highway, as were those we have suggested as having existed in the former one; as here there is an entire want of proof, not merely of the existence of a petition for the road, but of a compliance with a single one of the statute requirements for laying out a highway. We have, therefore, no hesitation in deciding that the road described in the plaintiff’s declaration was not a public highway, it never having been laid out agreeably to statute law, nor having been used by the public for twenty years.
The application of the statute rule works no injustice in the present case. A public corporation avails itself of the provisions of the public laws of the State. If the town are subjected to costs, it is their own fault, as they were bound to know whether the road in question had been legally established or not. Had it been desirable to change the highway from its position on the hill to the ground now occupied, it would have been competent for the selectmen, on a proper application to them, to have laid out the present road as a public highway, and for the town by vote to have discontinued the old road. As neither was
According to the provisions of the agreed case, there must he
Judgment for the defendants.