State v. Boscawen , 32 N.H. 331 ( 1855 )

Eastman, J.^*

The defence to this information rests upon the ground that the bridge and road which were laid out in 1848, and for the non-building of which the information was filed, do not extend to, nor are they connected with any highway, and that consequently, there being no public avenue leading to them, they can not be nuisances liable to indictment.

Waiving the question how far the provision of the Revised Statutes, which is relied upon by the defendants, should be held to govern a case of this kind, we are of opinion that the defendants are not in a position to say that there is no highway “ laid out agreeably to statute law,” leading to this bridge. The verdict having been taken by consent, the jury are presumed to have found whatever the evidence will warrant.

In Guernsey v. Edwards, 6 Foster 224, it was held that a party, to take advantage of an illegality in the laying out of a highway, must be in a legal position so to do. And in State v. Richmond, 6 Foster 232, where this doctrine is very fully and ably considered, it was held that the laying out of a highway by selectmen, in cases where they have general jurisdiction of the subject, is not void, in the strictest sense of the term, although the course of proceedings prescribed by the statute may not have been followed: That such laying out may be confirmed and the objections to it waived by the parties interested, and that it can be avoided only by those whose rights and interests have been disregarded by the neglect to comply with the law. This doctrine of these cases was reexamined and reaffirmed in State v. Raymond, 7 Foster 388.

This bridge and road were laid out in October, 1848, the former bridge having been carried away by the ice in January, of that year.

In 1820 the selectmen of Canterbury made a return of a road leading to the bridge, and that road was made by the town and used by the public up to the time that the bridge was carried away in 1848.

On the other side of the river, the selectmen of Boscawen, in 1826, likewise made a return of a road leading to the bridge, which was soon after made by,the town, and has always been kept in repair by them, and the public have used it ever since it was made.

Here was a laying out of the road on both sides of the river, by the proper authorities — the selectmen of the respective towns; a record was made of the laying out, and the roads have been made and used for more than twenty years in pursuance thereof; and the towns are not now in a position to say that all the particular requirements of the statute were not strictly ad- , hered to in the laying out.

^ They are not highways attempted to be established by dedication, and therefore do not come within the condemnation of the statute referred to, which provides that no road leading to a toll bridge shall ever be deemed a public highway unless the same shall be laid out agreeably to statute law. But so far as these towns are concerned they are highways laid out according to the statute. After being duly returned and recorded according to law, and made by the towns and used for more than twenty years, the presumption is that all the proceedings required by the statute were followed. At all events, the towns cannot be heard to say that they were not. Such is the doctrine of the cases alluded to, and we think it the true rule.

This conclusion does not conflict with the rule laid down in Pritchard v. Atkinson, 3 N. H. 335 ; cited by the defendants. That was an action brought for a breach of covenant against incumbrances ; the alleged incumbrance being a highway across the land conveyed; and the plaintiff failed in his action, because it appeared that the laying out of the highway through the land was not legal. But the parties to that action were neither privies nor parties to the laying out of the road, and as such were not bound thereby; yet even there Richardson, C. J., says that where a highway has been made in pursuance of a laying out by selectmen, and has been used for a considerable time as such by the public, without interruption, a jury would be warranted in presuming that there was an application and notice, and that the damages were in some way adjusted, although nothing appeared in the record On the subject.

And so with the case of Greeley v. Quimby, 4 Foster 335, which is cited by the defendants. That, also, was an action between private individuals, where the validity of the laying out of a highway came in question, and in no way conflicts with the doctrine of State v. Richmond.

The town of Boscawen was a party to the laying out of the road in that town, and Canterbury to that on the other side of the river. In fact, the roads were laid out by the constituted agents of the towns. And although the acts of the selectmen would not bind the towns unless legally done, 'yet the towns, having acquiesced in the laying out, having made the roads and kept them in repair for over twenty years, and they and the public having used and occupied them for twenty years and more, they are now estopped from denying the regularity of the proceedings. They cannot now say that the roads were not laid out according to statute.

The settlement of this question disposes of the case, and renders it unnecessary to examine the other questions.

Judgment on the verdict.

* Pekley, C. J., and Powxer, J., having been of counsel, did not sit.