"Highways are only such as are laid out in the mode prescribed therefor by statute, or as have been used as such public travel thereon, other than travel to and from a toll-bridge or ferry, for twenty years." P. S., c. 67, s. 1. One method prescribed by statute for laying out highways is by petition and hearing before the selectmen of the town in which the proposed highway is situated. P. S., c. 67, s. 2; State v. Morse, 50 N.H. 9. This method is of general application and includes within its scope the laying out of highways within the limits of any town in the state.
Another and different method is provided for laying out highways in towns bordering on the Connecticut river and where the proposed highway crosses that river. P. S., c. 67, ss. 12, 13; Stearns v. Hinsdale, 61 N.H. 433,435. By this method, a town situated on the Connecticut river may, at any legal town-meeting, authorize its selectmen to unite with the selectmen or other proper officers of any contiguous town or towns in Vermont, and contract with them for the purchase of any real estate, or the privilege, easement, or franchise of any bridge or ferry corporation, if in their opinion the public good requires a highway to be laid out over said property. P. S., c. 67, s. 12. In a proceeding under this statute, a proposed highway is laid out and established when the selectmen, acting in pursuance of a vote of the town, enter into a contract with the officers of the adjoining town or towns in Vermont, and purchase the real estate, or the privilege, easement, or franchise of a bridge or ferry corporation, for the highway; and the questions of public good and the location of the, highway are determined by the selectmen when they enter into, the contract and purchase the necessary property. It was under this statute that the vote of Walpole was passed; and it follows as a necessary consequence, that when its selectmen, in pursuance of the vote, entered into the contract with the selectmen of Rockingham and purchased the Tucker toll-bridge property, the
road over that bridge became a public highway, and nothing remained to be done by way of petition or hearing, either before the selectmen or the commissioners, for its legal establishment.
It seems, however, that after the contract was made and the bridge was purchased the plaintiffs filed a petition with the selectmen of Walpole, requesting them to lay out a highway over the bridge, and upon its being denied took an appeal to the superior court, that the court referred the petition to the county commissioners, and that while the proceeding was pending before them, the selectmen of Walpole, in behalf of the town, petitioned the commissioners (in accordance with sections 11, 12, and 13, chapter 69, of the Public Statutes) for an apportionment between it and the towns of Alstead, Acworth, and Langdon of the future expense of repairing and maintaining the highway; and it is contended in behalf of these towns that, inasmuch as the commissioners were without authority to lay out a highway where one already existed, they could not lawfully apportion the future expense of repairing and maintaining the bridge. But the fact that over the route petitioned for there was an existing highway does not preclude the town of Walpole from having an apportionment of the future expense of maintaining it. In section 4, chapter 73, of the Public Statutes, it is provided that "when the expense of rebuilding or repairing a highway would be excessively burdensome to the town in which it is situate, and another town is greatly benefited by the highway, the supreme [now superior] court, upon petition and proceedings thereon as in the case of laying out a highway, may order a portion of the expense to be paid by such other town." This statute applies to existing highways (Pittsburg v. Clarksville, 58 N.H. 291); and while it does not in express terms authorize an apportionment of the future expense maintaining such highways, it has been construed to confer such authority. Campton v. Plymouth, 64 N.H. 304,308. In proceedings under it, the petition should be filed in the superior court and by it referred to the county commissioners, and not filed directly with the commissioners, as was done in this case. But the course here pursued does not necessarily render the proceedings invalid. It would seem that the parties had been fully heard before the proper tribunal, and if this is so, the petition of Walpole may be considered as though it had been filed in court in first instance; at least, the superior court may so treat it if in its opinion justice requires that it should be.
There is one other matter that remains to be considered. In the report of the commissioners it is stated that Walpole would be excessively burdened by maintaining the bridge, and the other towns named benefited thereby. To give the superior court
authority to award an apportionment, it should appear that the other towns are "greatly benefited." P. S., c. 73, s. 4; Langley v. Barnstead,63 N.H. 246. If the omission of the word "greatly" in the report is due to a clerical error in printing the case or in drafting the report of the commissioners, such steps may be taken in the superior court as will obviate this objection. It is further suggested that the contract between the towns of Walpole and Rockingham relating to the purchase of the bridge, and defining their rights and obligations as owners therein, should be reduced to writing and filed as a part of the record in this case. When these things are done and an order is made allowing the above amendment, the report of the commissioners, so far as it relates to the laying out of the highway, should be dismissed; but so far as it pertains to the apportionment of the future expense of maintaining the bridge across the river, it should be sustained and a decree entered accordingly.
Case discharged.
All concurred.