18 A. 86 | N.H. | 1888
The defendants' contention is, that the Main street sidewalk became a public highway subject to the right of the owner of the Lewis block to maintain the steps leading to the basement, and that the erection of a barrier by the defendants at the entrance to the stairway would be a taking of private property without the rendering of compensation. So far as the land-owner's rights are affected, it makes no difference whether his land becomes a highway by the exercise of the power of eminent domain, or by twenty years' use. In the former case compensation is awarded; in the latter, it is presumed to have been paid or waived. One of the incidents which follows the establishment of a highway by either mode is the duty of the town to keep it in repair suitable for the travel thereon. In order to discharge this duty the town is required to do whatever is reasonably necessary to be done to protect travellers from injury by reason of defects or obstructions made by others so near as to be dangerous; and the want of a railing or other barrier within the limits of the highway may be a defect. Willey v. Portsmouth,
No question of limited dedication or revocable license is raised by the reserved case, and Stafford v. Coyney, 7 B. C. 257; Le Neve v. Mile End Old Town, 8 E. B. 1054, and Morant v. Chamberlin, 6 H. N. 551, cited by the defendants, are not in point. In Jones v. Waltham, 4 Cush. 299, also cited by the defendants, the defect complained of was a cattle-guard at a place where a railroad crossed a highway on the same level, and the town under the circumstances shown in that case was held not liable. But see Willey v. Portsmouth,
Exceptions overruled.
ALLEN J., did not sit: the others concurred.