| N.H. | Aug 13, 1875
Lead Opinion
FROM COOS CIRCUIT COURT. By express provision of law, selectmen are authorized "to lay out any new highway * * * for which there shall be occasion, either for the accommodation of the public or of the person applying;" and if it be for the accommodation of an individual, it may be laid out subject to gates and bars, to be maintained by the person thus accommodated, his heirs or assigns; "but no other condition shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made." Gen. Stats., ch. 61, secs. 1, 12.
The report of the selectmen as well as that of the commissioners declares that the highway in question was laid out for the accommodation of the original petitioner, not subject to gates or bars, but upon this condition among others, that the same should "remain a highway so long as said petitioner shall keep the same in repair, and no longer."
These conditions are not precedent, but subsequent. Still, they are not so far independent of the laying out of the highway as that they may be rejected and declared void, and yet the remainder of the report stand good, because it is provided that the new road shall remain a highway so long only as the petitioner shall keep it in repair; and, since he is also required to do certain other things by way of protection of a well, situated within the limits of the road, for the use of an adjoining land-owner, it seems more than probable that the conditions thus affixed to the laying out, and "imposed upon the individual for whose benefit the laying out was made," in express violation of the plain provisions of the statute, are such as determined the judgment of the several tribunals in favor of laying out the highway. Brown v. Brown,
It is suggested in argument, that, since these conditions are imposed upon the petitioner alone, the plaintiff is not entitled to take advantage of them. This is a singular position for the defendant to take. The plaintiff is the party whose land the defendant — the original petitioner — proposes to have confiscated for his own special benefit, by means contrary to law. "Any land-owner or other person aggrieved by the decision of the selectmen in laying out or altering a highway" may appeal, and, upon a subsequent reference to and report of the *190 commissioners, the "decision of the selectmen may be affirmed, modified, or reversed." Gen. Stats., ch. 63, secs. 10-12.
The right of appeal carries with it the obligation of the court to grant redress, if so grave a cause as the clear violation of statutory provisions be shown.
The plaintiff's objections to the report are not to be considered as waived because not taken at the first term of court to which the report of the commissioners was returned.
No statute or rule of court limits the time within which the objections to the report shall be taken, nor requires a specification of them within a prescribed period. The court is at liberty to make such orders in such a case as justice may seem to require. Gen. Stats., ch. 189, sec. 6.
It does not appear, and is not suggested, that the defendant is prejudiced by any delay of the plaintiff.
I deem it unnecessary to consider the constitutional questions, which are the main questions discussed by counsel, since, for the reasons already declared, the laying out of this road must be held void.
Concurrence Opinion
By the law as it existed at the time this appeal was taken, highways of this kind might be laid out subject to the maintenance of bars and gates, but it was expressly enacted that they should be subject to no other conditions whatever. It appears that the selectmen laid out this highway, subject to the condition that it should be built and maintained by the petitioner, and to be a highway no longer than he should so build and maintain it. In other words, the judgment of the selectmen was, that the public good did not require this highway to be laid out unless the petitioner would not only pay the land damages as the statute requires, but also build and maintain the highway at his own expense. This seems to me to have been equivalent to saying that there was no public occasion for the highway. At all events, it was a case not authorized or contemplated by the statute. It is clear that the appellant cannot be deprived of his property except for a public purpose, and in strict conformity with the statute. This objection, therefore, is fatal to the proceeding. The selectmen had no authority to lay a highway under such circumstances. The appellant, whose land has been taken from him without authority of law, is well entitled to say that he is aggrieved by the doings of the selectmen in laying out the highway, and, as the statute authorizes the appeal in such a case, it would appear that it must authorize the court to redress the grievance complained of. Whether certiorari would also be a proper remedy, it is not necessary now to decide.
It has been held — Metcalf v. Swett,
But it is said that the appellant has waived the objection on account of the imposition of the condition in the laying out of the road.
We have seen that the objection is fatal, because the laying out of the road in the manner it was done was not only without authority, but in fact directly in contravention of the statute, which provides — ch. 61, sec. 12 — that no other condition (viz., excepting the maintenance of gates or bars) shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made.
Now, in what manner can it be said that the appellant has waived his right to make this objection? Within the time limited by the statute he appealed from the doings of the selectmen, alleging that he was aggrieved by the decision of the selectmen in laying out the highway, and in the assessment of damages. The statute does not require that he should, when taking his appeal, set out the grounds of his appeal, nor does it appear that any order was made upon him by the court for a specification or bill of particulars. It could not be known, until the report of the commissioners came in, whether they would retain the objectionable feature or not, and there was nothing in the objection which raised any questions for the jury, or in any way affected the jury trial. I do not see how the appellant has done anything which would justify the petitioner in believing that he did not mean to insist upon that objection, or in altering his situation by reason of such belief. It seems that the most that could be said would be, that, if necessary, as in any other case where the party proposed to amend his specification or pleading, such terms might be imposed upon him as would indemnify the other party. No such occasion is apparent to me. My opinion, therefore, is, that the laying out of the highway must be adjudged to be void.
Concurrence Opinion
The question whether conditions like these, affixed to the laying out of a highway for the accommodation of an individual, are authorized by statute, was settled adversely in Brown v. Brown,
Report set aside.