23 N.H. 340 | Superior Court of New Hampshire | 1851
Section 9, chapter 49, Revised Statutes, provides, that upon a petition for a highway, selectmen “may lay out the same across or over any existing highway.” Ry the express terms of the statute then, the power is given to selectmen, in case of a petition presented to them for a new highway, that was exercised by the road commissioners, and sanctioned by the court below, in the present case. The original petition for the highway, in this case, must have been presented to the selectmen of Raymond, and the prayer thereof denied by them, else the present petition could not have been properly presented to the court of common pleas. The land over which the road prayed for passes, lying entirely within the town of Raymond, the jurisdiction of the court of common pleas, and of the road commissioners, was not original in the case, and could be exercised on no other foundation, than that of the petition presented to the selectmen as aforesaid, and their refusal to grant the prayer thereof. And the original petition to the selectmen, must, like the present, have been for a neiv highway. The application to the court of common pleas was not a new proceeding, but was in the nature of an appeal from the proceedings of the selectmen. The petition in each case must have been for the same highway. Since no objection is taken to the joroceedings in that particular, we may properly assume that none existed. Clearly, then, while the petition was pending before the selectmen, they might well have exercised the authority, of which complaint is made, when exercised by the road com
Section 3, provides, that “ they shall make examination, and hear all parties interested, in the same manner as selectmen are required to do, and shall have like powers.”
Under the provisions of this last section, we think the road commissioners may well be held to possess the same powers in the discharge of their duties, in reference to such petitions as may be properly referred to them, as may rightfully be exercised by selectmen, in all cases where no restriction is placed upon that exercise in the case of road commissioners, by some express provision of the statutes. In the particular under consideration, we find no such restriction, and are, therefore, of the opinion, that the same power was possessed by the road commissioners, to lay out the road in this case,"as we have seen to have been expressly given by the statute, to selectmen, in a similar case.
As to the first exception, therefore, the ruling of the court below is sustained.
A further exception to the proceedings below, and judgment of the court is, that the route, over which the highway Ayas laid out, was not shown to the commissioners, nor examined by them, before the hearing of the parties Avas had before them. By the facts stated in the bill of exceptions, it appears, that prior to the “first examination and hearing before the commissioners,” a part of the road, finally laid out, one hundred and seven rods in extent, a portion of it being, on the route of it, over the old road, and a part over the route of the new portion of the road, was not
But after the hearing and before the laying out, the commissioners examined the route over which the road was finally laid out by them.
It is not stated in the exception, nor was it suggested at the argument, that all parties had not an ample opportunity to be present at the examination of the route of the road finally adopted, and to be heard thereon, if they desired it. It is the “duty of commissioners, as we have seen, to make examination and hear all the parties, in the same manner as selectmen are required to do. Rev. Stat., chap. 51, § 3.
It is made the duty of selectmen, “ at the time and place ” of hearing, appointed for the purpose, to make “a personal examination of the several routes proposed, and of the highways for which such new highway is designed to be a substitute,” and to “ hear all the parties interested, who may attend, and any evidence they may offer,” &c., &c. Rev. Stat., chap. 49, § 7. It is seen, then, that the statute does not provide in terms, that the examination of the proposed routes, or of the highways for which the new way is designed as a substitute, shall take place prior to the hearing, but only requires that the commissioners shall make a personal examination of the several routes proposed, &c., and shall hear all parties interested, who may attend. Consistently with the terms of the statute, the examination may as well follow, as precede the hearing, in point of time.
By the terms of the act, literally considered, the examination and hearing are both to take place, “ at the time and place so appointed ” for the hearing. But by a fair and reasonable construction, it is sufficient, if the hearing be at the time ; that is, if it be a part of the whole transaction, of which it is intended to be but a part, made up of the examination, and of the hearing together. That is all that is required. Whether in point of time, the hearing immediately precedes or follows the examination, is immaterial. The provisions of the statutes are as well complied with, and the rights of those interested may be as
Another exception stated in the bill, and relied upon by the counsel for Raymond, is, that the road commissioners have not pursued them authority, inasmuch as they have reported in favor of laying out a highway three rods wide, while the road prayed for, in the petition, was four rods wide.
It is quite clear, that highways in this State can only be laid out upon a written petition, and that they must he laid out substantially, in conformity therewith. A road cannot be laid out upon a route, substantially other and different from that described in the petition, fairly and properly understood according to its legal construction and intendment. Wiggin v. Exeter, 13 N. H. Rep., 304. The question in the present case is, whether the road commissioners in their report, laying out the same, described a highway, other, and substantially different from that set forth and prayed for in the petition, and such as they Éad no authority to lay out. By the statutes, no particular width of road is required to be stated in a petition, or laid out by the selectmen or road commissioners, nor is there any such rgquirement by the rules of court, established in reference to laying out of highways. By no express provision of law, then, is it necessary to lay out a highway of a width other than the public good requires, or to state any width in a petition. But in practice some width is usually stated in the petition. And it may often happen, as it did in the present case, that, in the judgment of the road commissioners, the public interest may not require a road of so much width, as may be set forth in the prayer of the petition, and yet may demand a road of less width.
It is readily seen, that both convenience and economy would be promoted by holding, that in such a case the commissioners have authority to lay out a road of less width than that prayed for. And we discover no evil likely to result from it to any party. It could not be regarded as done in the exercise of an excess of authority in any reasonable sense. It could not be doubted it is in effect conceded, by the exception taken, that
A discretionary power similar in principle to that exercised in the present case, has been exercised by road commissioners, and sanctioned by the decisions of this court, in the laying out of a way, allowing the same to be laid out either upon a straight line, or upon a line varying from a straight line, as found most practicable and conducive" to the public interests, in a case where the road prayed for was from one terminus to another, without any intermediate limit. In such a case the prayer of the petition has been regarded as being substantially pursued, and the road laid out, as being in conformity therewith, whether the road be laid out on a straight line, or on one varying from a straight line, between the two termini. Wiggin v. Exeter, before cited. Moreover, we think it is quite clear from the provisions of sec. 8, chap. 49, Rev. Stat., that the legislature intended to confer upon selectmen, and consequently upon road commissioners also, a broad discretion both in regard to the locality of the way between the termini and to any other intermediate limits that may be described in the petition. And the question may well arise, whether under the authority of that section alone, notwithstanding the limits of the way specified in the petition, they may not lay out a way of less width than that described therein.
The judgment of the court, therefore, is, that the prayer of the petition be denied, and the
Petition dismissed.