State v. Nudd, 23 N.H. 327

State v. Nudd

23 N.H. 327 | Superior Court of New Hampshire | 1851

Woods, J.

It is not necessary to consider or discuss the motion to quash the information. Perhaps upon the face of it, there is no uncertainty. The way is described, at the point of complaint, as running “ from the Beach road, so called, at a place near the Logs, so called, along the northerly side of said Great Boar’s Head, to the easterly point' of said Great Boar’s Head, which said highway, was, and is, two rods in width, and eighty rods in length.” The road then, by this description, properly and legally construed, extends along the extreme northerly border of Great Boar’s Head and has the width of two rods. If the evidence descriptive of the road, as found or shown by *336the facts of the case, creates any objection, it may well be doubted whether it be not the objection of a variance between the allegations in the information and the proofs. Without pursuing this enquiry, we will proceed directly to the only question deemed important to be considered in deciding this case. That question is, was there a public highway existing at the time, as alleged, from the point “ opposite the Large Rock, and extending to the easterly point of Great Roar’s Head.” The obstructions complained of, according to the case, “ were placed opposite to, and easterly of, the Large Rock.” The case finds, that at the “ Logs,” a place westerly of the Large Rock, and extending to a point near it, sea-weed collects ; and the evidence showed that a large number of teams are in the habit of taking seaweed at the Logs every year, but principally in the fall, winter, and spring, and had done so for more than twenty successive years next preceding the time when the obstructions were caused, of which complaint is made. Seventy-two teams were seen at one time. The “ Logs,” so called, is an open portion of the beach, fifteen or twenty rods in length, and its width is not given. Whether the use made of the way at the “ Logs,” was such as to constitute it a public highway, which the town of Hampton were bound to keep in repair, we need not determine. We need not decide upon the effect of many persons going upon the beach with teams, for the purpose of collecting sea-weed, and passing and re-passing freely for such purposes over all parts of the open- space by the Granite House, and Fish House, and at the Logs, as furnishing, or not, evidence of a public highway. We need not determine whether the nature of that use is such as to give to the public the ordinary rights acquired and enjoyed in public highways, or whether the easement, if any is acquired, be not of a different character. If this question were important, more facts probably exist, that might aid in arriving at a proper conclusion upon the point. But the evidence in the case tended to show (as to the residue of the alleged way,) that a number of teams, more or less, passed beyond the Rock, along where the obstructions were placed, and so on towards the easterly point of Great Boar’s Head, some of them going to the *337said point, and in two or three instances, around it. These teams gathered rock-weed principally, hut sometimes sea-weed, and drift-wood. Thi3 was the fact every year for more than twenty successive years, immediately preceding the time when Nudd placed the obstructions in the alleged highway, though mostly in spring and fall. Wheel ruts were distinguishable along by the Rock for a good portion of the time, but were sometimes covered up by the sand. The distance where the marks of wheels were thus distinguishable, is not exactly settled.

The question is whether here is a way, shown by the public use, at and beyond the Large Rock.

We think the true doctrine upon this subject, is laid down by the late C. J. Richardson, in Barker v. Clark, 4 N. H. Rep., 383 ; “we entertain no doubt,” says he “ that a highway may be proved by long usage, but a way, to become public, must be used in such a manner as to show that the public accommodation requires it to be a highway, and that it is the intention of the owner of the land to dedicate the way to the public.”

The facts, as stated in that case, in reference to which that doctrine was stated, were thus: “ in order to show that there was a public highway through the close, the defendant offered to prove that the people in the neighborhood and others had long been accustomed to pass through the close not only on foot, but with teams ; but as he did not offer to prove that the way had ever been opened, or made, or repaired, as a highway, the court rejected the evidence.” And the learned Chief Justice, in delivering the judgment of the court said, “ in this case there was no evidence that the road was ever opened, or made, or repaired. There was no attempt to offer evidence which showed an intention in the owner of the land to dedicate the way to the public, or that the public convenience required the way.”

We regard the facts in that case, as going much farther than those in the present case, to prove a public highway by dedication and use.

In that case the people in the neighborhood, and others, had been accustomed to pass on> foot, and with teams through the the close in question for a long time, and it was decided that *338that alone was wholly insufficient to prove either a public necessity for the way, or a dedication of the land by the owner.

And we think it entirely clear, that the evidence in the present case, showing only that a “ number of teams, more or less, passed beyond the Rock where the obstructions were placed, and so on towards the point, some of them going to the point, and in two or three instances around it, was wholly insufficient to prove a public highway which the town of Hampton was bound to keep in repair. Here, it may well be said, that no public use was made of the alleged way. At most, it was shown that a few teams passed the Rock, mostly in Spring and fall, to procure rock-weed, and sometimes sea-weed, and drift-wood. Here was no such use as would reasonably inform the owner, of a public claim of a right of way in his land, or of a public use, or of any necessity in the public for such use. And short of that use, we think no inference of an intention on the part of the owner, to dedicate it to the public, could legally be inferred. The use made of the way, such as it was, was very trifling, and in fact, for nearly the entire way beyond the Rock, the way was incapable of any such use, for such a length of time as would evidence a public necessity for it, or show a dedication by the owner.

In the case of Barker v. Clark, an uninterrupted use, for a long time, by the people in the neighborhood, and others for general purposes, was shown, and yet it was holdon not to prove a public necessity for the way, or an acceptance of it by the public, or a dedication by the owner. In the present case, it appears, that a few individuals only, made any use of the way, and that only at specified seasons of the year, and for special purposes.

Most of the way, there were no wheel or other marks, to indicate the course of travel, and at the Rock even, a portion of the time, no mark of travel could be seen. And at many points the course of travel, such as it was, changed from time to time, as often as the waters washed away the soil over which it passed, which occurred frequently. The use made of the way was private in its character, and not general; was trifling in amount, and at most, only occasional, at particular seasons of the year.

*339Such a use would certainly furnish no evidence of a public necessity for a road, and consequently, none of a dedication to such use is to be inferred from the public use and necessity.

And we have not been able to find a case, and we think no case can be found, where such a use alone appeared as is here shown, aside from any laying out of the way, or repairs, or other recognition of it by the public authorities, that gives the least countenance to the idea that the use shown furnishes sufficient or competent evidence of the existence of a public highway.

It would be a monstrous and intolerable doctrine, that would compel towns to keep such a way in repair, and to respond in damages for delinquencies therein.

Repairs at many points would be impossible, while at the same time the public has no occasion for the way, but, at most, only a few straggling teams of such persons, and those only a few, as would resort to the beach occasionally, for the mere private purpose of collecting rock-weed. Besides, what is shown to let the public officers know where to repair, or the owner of the land, what part of his land is claimed as a public easement, and as being dedicated by him to the public ?

It is well settled, that even an uninterrupted and constant use of a way for twenty years, is not conclusive evidence of a right Pritchard v. Atkinson, 4 N. H. Rep., 9, 12.

The facts in the case of State v. Bartlett, decided by this court, in this county, at July term, 1846, clearly distinguish that case from the present. In that case, for more than fifty years, there had been a travelled path, used during that period, by the owners of four several tracts of land, by which it passed, for the purpose of passing with their teams to and from their fields, three of whom had no other means of access to those fields; and it was also much used by pleasure conveyances, and persons resorting to the beach, and was connected with the road leading from Newcastle village to Fort Constitution, and the travel uniformly passed along the same track. Here was a way, then, clearly marked by travel; a path much used for more than fifty years by the public, and in a manner clearly showing a public necessity ; and a dedication of it to the public, by the owners of the *340land. Such a use could not fairly be presumed to be for such a length of time, without .a knowledge of the owner of the land, and his acquiescence in the use, and without such a public necessity as would amount to a dedication of it to the public for that purpose.

On the whole, upon the facts reported, we think the information cannot be sustained; that the verdict should be set aside, and a

New trial granted.