13 N.H. 381 | Superior Court of New Hampshire | 1843
The commissioners rightly regarded the centre of the turnpike road as the line between the towns of Marlborough and Troy. Where there is nothing to control the general language of a grant running to and bounding on a highway, a similar principle applies to that which is well settled in relation to boundaries upon rivers not navigable, and the grant extends to the centre of the way. 15 Johns. R. 454, Jackson vs. Hathaway, Pr. Platt, J.; 3 Fairf. R. 463, Bucknam vs. Bucknam; 3 Kent's Com. 348, [5th Ed. 433.] This construction may be controlled by the particulars of the description, or perhaps by circumstances. 11 Pick. R. 193, Tyler vs. Hammond. But there is nothing in the language of the charter of Troy which should limit the construction ; nor can we restrict the general terms of it on account of any supposed difficulties respecting the repair of the road, or the remedy of those who may receive injuries by reason of a neglect to repair.
It would undoubtedly be more convenient, had the line been so described as to leave an entire section of the road in one town, and another section in the other, but we have no power thus to construe the charter.
The perambulation in 1816, and the marking of the hemlock by the side of the road, do not change the case. That merely designates the course and place of the line running
But the commissioners erred in the principle upon which they apportioned the damages. In estimating and apportioning the value of the franchise and road taken, they might well take into consideration, along with the distance in each town, the value of the existing road, with reference to the cost of construction and state of repair. These things constituted a part of the value of the thing taken, for which the damages were to be paid. But the greater ability of one town to pay, or the greater advantage which its inhabitants would receive from a free highway, constituted no part of the matter taken from the turnpike corporation; and it is for what is taken from that corporation, that payment is to be made. The damages are to be paid to the corporation, for the property which is taken from it for the public use, and the proportion of the value of that property, within each town, must constitute its proportion of the sum to be paid. For this reason the report must be recommitted.
