Wells v. Goffstown

| Superior Court of New Hampshire | Jul 15, 1844

Woods, J.

The question arising in this case is, whether the plaintiff was properly employed by the agents of Goffstown, either to make the repairs of the highways, or to survey the lumber, so as to entitle him to charge his services to the town. It appears that he was directed to make the repairs by one only of the selectmen, and without the express assent of the others. Are the facts presented in this case such as authorize selectmen to repair highways, and warrant either one or all of them in employing the plaintiff?

The Revised Statutes, ch. 55, sec. 1, provide that “ every town shall raise such sum of money as they may judge necessary for making and repairing the highwaysand this is ordinarily to be expended under the direction of surveyors, and the warrants of the selectmen. Also, section 16 provides that, “ Whenever the whole tax in any surveyor’s list is not in the opinion of the “selectmen needed for repairing the highways in his district, they may direct the surveyor to cause the same to be worked out in any other district.” And section 11, that “the selectmen may order any surveyor to cause the taxes then due on his list, to be worked out in any other district in which the taxes from any unforeseen accident shall be found insufficient; and if the taxes then due shall be insufficient, the selectmen shall cause the road or bridge affected by such accident to be put in repair at the expense of the town.”

It is evident, then, that selectmen have no genei’al authority to repair highways at the expense of the town, only in specified cases and under peculiar circumstances. We are of opinion that the selectmen are authorized, only in the event that all the money raised in the town has been expended to make repairs at the town’s expense. Such seems to be the policy of the statute.

In this case the facts do not show that the money raised by the vote of the town had been first expended. Accordingly, the plaintiff is not entitled to recover for his services in repairing the highway.

Was the plaintiff duly employed to survey the lumber, and to charge the same to the town ? It appears that he was employed by a surveyor of highways to survey the lumber necessary for the rejeairs. Chapter 55, section 14, provides that “ surveyors of highways may purchase all such timber, plank, and other materials, as are necessary for repairing the highways and bridges in their respective districts, at the cost and charge of the town.” As incident to that authority, it seems very clear to us that they have the power to cause the timber to be surveyed, as the ordinary means of ascertaining its value. The plaintiff, then, was properly employed to make the survey, unless the surveyor was directed to engage a sworn surveyor, and the plaintiff is not shown to have been such. But the surveyors are made the agents of the town to purchase the lumber, and, as we have seen, to cause it to be surveyed. And we do not find that the selectmen are authorized to impose any limit upon the exercise of that authority. It is their duty to limit the district, and to furnish each surveyor with a list of the several tax-payers in his district, with the tax assessed to each, and a warrant to collect the same. This certainly prescribes no limitation of his authority; nor is any person prohibited by law from surveying lumber for such use. And no reason appears why the town is not chargeable with the reasonable value of the plaintiff’s services in surveying the lumber.

But it is objected, that unless it appear that the plaintiff' demanded payment for his services of the selectmen, or that he had given them notice of his claim, the action is premature and can not he maintained. But we are aware of no principle of law requiring such demand or notice of the agents of a town more than of individuals.

The plaintiff is entitled upon the facts in this case to recover for his services ; and as the judge who tried the cause decided differently, the verdict must be set aside and a

New trial granted.