Walker v. Manchester , 58 N.H. 438 ( 1878 )

Highways are only such as are laid out in the mode prescribed therefor by statute, or as have been used as such for public travel thereon, other than travel to and from a toll-bridge or ferry. for twenty years. Gen. St., c. 68, s. 8. Formerly a highway might be established, in this state, by dedication, and acceptance thereof by public use for a shorter period of time (State v. Campton, 2 N.H. 513; Pritchard v. Atkinson, 4 N.H. 9; Barker v. Clark, 4 N.H. 383; Hopkins v. Crombie, 4 N.H. 520; State v. New Boston,11 N.H. 407, 412, 413; State v. Atherton, 16 N.H. 203, 208); and by such dedication and acceptance (and only by acceptance and public use) the town became chargeable with the burden of maintaining the highway. By analogy to the statute of limitations, twenty years' user was evidence of dedication. State v. Atherton, before cited; Stevens v. Nashua, 46 N.H. 192. But since the passage of the revised statutes of 1842, nothing less than a public use for twenty years is sufficient for the establishment of a highway by prescription. Hall v. Manchester, 39 N.H. 295, 304; State v. Morse,50 N.H. 9, 17.

The plaintiff and those whom he represents have opened a way of access and egress, appurtenant to the house-lots which they have sold abutting upon the streets designated upon the recorded plan. The purchasers paid a price enhanced by the advantages afforded by a location upon a street which, for all practical purposes, should afford to them a means of public communication with public highways. And whether the act of publishing and recording a plan, and selling lots with reference to streets marked out upon it, be regarded as a dedication of those streets to the public, or only as the opening of streets or ways appurtenant to adjoining house-lots, the practical result is the same, — namely, when the city establishes a highway upon the streets thus opened, it may do so upon payment to the owner of the fee of such damages as he has sustained; and the compensation which he has already received, through the enhanced value of the lots which he has sold and of those which he retains, may be set off against the loss or damage sustained by the establishment of the highway; and if the gain is as much as the loss, he has sustained no damage by the laying of the highway. In the matter of Furman Street, 17 Wend. 649, 661; Livingston v. Mayor of New York, 8 Wend. 85; Matter of 29th and 39th Streets, 1 Hill (N. Y.) 189, 191.

It is said by the plaintiff that the agreement having been not absolutely to lay out streets, but only that if streets should be laid out they should be located as indicated upon the plan, the parties were at liberty to revoke their expressed intention, and make a new agreement changing the location of the streets, or abolishing them altogether.

But even if this were so originally, a time arrived when it became too late to make such revocation; and that time was when purchasers of lands, upon a consideration enhanced by the inducements held out by the proclamation of these landholders, acquired such rights with reference to their house-lots thus purchased, and the convenient and indispensable enjoyment of them, as would render it fraudulent on the part of the vendors to revoke their agreement by changing or abolishing the location of the streets laid down on their recorded plan, with reference to which their sales and conveyances had been made. Holdane v. Trustees of Cold Spring,21 N. Y. 474, 479; Huber v. Gazley, 18 Ohio 18, 24 (where it is said, "The use vested at the instant the first lot designated upon the plat found a purchaser"); Godfrey v. Alton, 12 Ill. 29; Angell on Highways 160; Bigelow on Estoppel 568-560.

But it is contended that the public acquired no rights resulting from an agreement between individuals. Whether the public have the right to use Walker street as a general passage-way from one part of the city or the country to another, we need not inquire. However this may be, it is certain the public may use the street as and for a way appurtenant to the lands conveyed by the plaintiff and others on either side of it; and it does not appear that the plaintiff can suffer any loss from the use of the street for general purposes. Why should the public render to the plaintiff compensation for damages which he has not sustained, or for which he has been once compensated? Having, for a consideration fixed by himself, relinquished to his grantees, and thus indirectly to the public, certain valuable rights with reference to the exclusive use of Walker street, the plaintiff is now entitled to compensation for no more than the value of that which remained and of which he has been deprived. There is no evidence that he has been injured by the establishment of Walker street as a public highway, and, upon the facts reported by the commissioners of highways, the plaintiff is entitled, prima facie, to no more than nominal damages.

Case discharged.

STANLEY and CLARK, JJ., did not sit.