44 N.H. 628 | N.H. | 1860
Laying out of the case, for the present, the alleged way of necessity around the bend, one question is, whether a bridge at the place in question would be so connected with other public highways as to be convenient and useful to the public, so that the neglect to build or repair it would be a nuisance. If the bridge, when erected, would be of no public utility or convenience, then the failure to erect it would not be a nuisance. State v. Canterbury, and State v. Boscawen, 28 N. H. 225; State v. Rye, 85 N. H. 380. The case, then, is this: On the south side of the bridge site is clearly a public highway leading to it, and on the north side is also a public highway, extending eighty-five rods, through a meadow under cultivation, but upon which there is no house or other buildings— the meadow consisting of about one hundred acres, and composing part of the farm of one Eames, who resides upon the south side of the river; and the evidence tended to show that in transporting the products of this meadow to his farm, house and barns, the said Eames had occasion to use this highway on the north side of the river and the bridge at the point in question ; but there was no evidence of any occasion to use either for any other purpose. Whether a bridge, if erected, would be so connected with public highways as to be useful and convenient to the public, is a question of fact for the jury, and unless they could not legally have so found it on this evidence, the verdict must stand.
The objection appears to be, that to this eighty-five rods of highway no one would have access, legally, from the northerly side of the river but the owner of this farm; and yet we think it does not, on that account, necessarily lose the character of a public highway. The nature of this use is the same, though probably less frequent, as if his dwelling-house was upon this part of the highway; and although no others might have the right to use it at all, except by virtue of a license to cross his land, yet it has not ceased
In State v. Rye, before cited, the court held that if the public had no means of access to the road and no occasion by and upon which they could use the new highway, it could be no nuisance not to build it and keep it in repair. At the same time it is laid down that the jury might have found the highway useful and convenient for the public, with the means of approach only from its eastern terminus, although the land through which it passed was only an uninhabited pasture.
Another question that may arise is, whether a right of way, by necessity, still exists around the bend in the Connecticut river. It seems to be well settled that where a public highway becomes temporarily obstructed and impassable by reason of a flood, a heavy snowdrift, the falling of a tree, or the like, the passenger may pass around such obstructions upon the adjoining land. But this is upon the ground of necessity, and gives to the public no permanent easement around such adjoining land. In the case before us the entire bed of the road has been cut off by the encroachments of the river; and a traveler who had unexpectedly found his course arrested by the sudden and violent destruction of the way, would have been justified in turning into the adjoining land, doing as little damage as possible, in order to pursue his journey. So far the authorities
These general views as to the temporary character of this way of necessity are sustained in Campbell v. Race, 7 Cush. 408 ; Ang. on Highways, sees. 353-355; 3 Kent Com. 424. As to the general doctrine in respect to the right to go extra viam, see 1 Saund. 323, n. 3; Taylor v. Whitehead, Doug. 745 ; Bullard v. Harrison, 4 M. & S. 387 ; 3 Dane Abr., ch. 79, art. 3, sec. 11.
Should it turn out, upon further examination, that since 1812 the public had acquired by user another right of way around this bend instead of the one existing at that time, and that this road-bed had, although undermined, still remained in this state, the duty of the town to rebuild and keep it in repair would continue, we think, so long as the road was not discontinued, and would not be affected by the fact that it was difficult or expensive. Under such circumstances it would be no defense to this indictment that access to the bridge was cut off, because it would have been occasioned by a neglect of duty by the town itself.
These views render it unnecessary to consider the question of abandonment, although it would seem that the easement would not be lost by non-user for any period less than twenty years, however it might be if the non-user existed for that time. Webber v. Chapman, 42 N. H. 326-335.
Should the respondent elect to go to the jury on the question whether the neglect to rebuild the bridge is a nuisance, there should be taken into consideration the means of crossing, without such bridge, by fording or otherwise; the occasion there would be to cross at that point; whether it would be frequent and continued, or only exceptional and rare ; or of a character so trifling as to be of no substantial importance ; whether the bridge would be so connected with other public highways, to which there is access, that it would be of public utility and convenience ; and whether the want of access, if it exists, is caused by the fault of the town in not keeping in repair the highways leading to the bridge. The respondent, having elected a trial by the jury, as provided in the case, the
Verdict is set aside.