Town of Groton v. Haines

| N.H. | Jan 15, 1858

Peeley, C. J.

The case shows that when the road was laid out in 1841 the owner of the land had on it an artificial watercourse, made and used to convey water to his house and barn ; that the road was laid out across the water-course, and a culvert constructed for the passage of the water, about two feet wide and a little over one foot deep; that the culvert was reconstructed in 1851, and remained in a proper condition to convey the water until 1855, when it was allowed to go out of repair, and was choked by earth and other materials, falling in, so that the water could not pass ; that the defendant, then the owner of the land and water-course, called on the surveyor of the district to clear out the culvert, so as to allow the water to run down through it to his house, which the surveyor refused to do. The defendant thereupon cleaned out the culvert himself, and the evidence was conflicting as to the manner in which this was done.

The court instructed the jury, in substance, that upon the admitted facts of the case the defendant had the right to clean out the culvert, doing no unnecessary damage to the road, and leaving it in as good condition as he could with the materials there belonging to the town.

Two grounds are taken by the plaintiff:

1. That the defendant had no right to a passage for his watercourse, or, in other words, that the town had a right to stop the water-course, discontinue the culvert, and make a solid road-bed across the channel.

2. That, even if the defendant had a right to a culvert, and it was the duty of the town to provide and maintain one for him, he was bound, if he opened it himself, to put the road in order again, by furnishing new materials, if necessary, and would not be justified in opening it if it became obstructed by neglect of the town, though he did no unnecessary injury, and put the road in as good condition as he could with the old materials.

Neither of these positions, we think, can be maintained. When the road was laid out the owner of the land had an artificial water-course, to convey water to his buildings. His right of property in it was. as complete and absolute as if it had been a natural stream; Dunklee v. Wilton R. R. 24 N. H. (4 Foster) 489 ; and the public by laying out the highway acquired no more right to interrupt the owner’s use of it, than if it had been a natural stream of the same size and character, and used for the same purpose.

When the public take land against the owner’s consent, for a highway, they take such an interest and such rights in the land as are necessary for the public use, and no more. The general property in the land, and'every use and profit of it, consistent with the exercise of the public right, remain with the owner. The exercise of this right does not in ordinary cases require that a water-course, whether natural or artificial, over which the road is laid out, should be stopped by it. A proper construction of the road would require it to be built with suitable culverts and passages, to carry the water through or under it, unless a case should occur where the difficulty and expense of providing and maintaining the necessary passages for the water should so exceed the damage done, by stopping the water- course, as to make it unreasonable to insist on the passage of the water ; and in such cases it would be understood that the land-owner had been compensated in the award of damages for the injury caused by stopping the water-course. No such case is shown here, nor do the plaintiffs take any such ground. The facts found show that it was perfectly easy to make and maintain a suitable culvert; such a culvert was in fact maintained for fourteen years, and there was no change in the construction of the road, or in any of the circumstances, to increase the difficulty of maintaining the culvert. The question whether a proper construction of the road would allow a water-course to be stopped, might in some cases be a question of fact, to be settled by the jury ; but here, we think, on the admitted facts, the court were bound to instruct the jury as they did in substance, that the defendant had a right to a suitable passage for his water-course through or under the road, and that if it had been submitted to the jury, and they had found otherwise, it would have been the duty of the court to set the verdict aside, on the ground that the jury must have acted under some gross misapprehension of the case.

The defendant, then, had a right to a suitable culvert, to convey the water in this water-course across the road, and it was the duty of the town, or the officers of the town, to provide and maintain it for him; and when the culvert was filled up and stopped, by neglect of that duty, it was a nuisance, which caused the plaintiff a private and individual damage ; and, on general principles, he had a right to remove it himself, in a proper manner, doing no unnecessary damage. No complaint is made that he proceeded without due notice. He called on the surveyor to do his duty, which he neglected.

If he removed the nuisance, doing no unnecessary damage to the road, there is no principle upon which he could be required to furnish new materials for making the repairs, which ought to have been made by the town. He neglected no duty and was guilty of no wrong ; and if the road was left out of repair it was in consequence of the neglect of the town to maintain a proper culvert, and they must answer further on default.

The evidence as to the manner in which the obstructions were removed from the culvert, was conflicting, and was properly left to the jury.

Judgment on the verdict.