Sanborn's Petition , 33 N.H. 71 ( 1856 )

Perley, C. J.

The statute provides that if the road commissioners, on laying out a road, shall be of opinion that “ the town or towns through which the same passes would be excessively burdened by paying the whole expenses of constructing the same,” and “ that any other town or towns in the vicinity, in the county or counties through which said road passes, would be greatly benefited by its construction,” they shall apportion such part of said expenses as they shall deem just and reasonable to such town or towns, &c.

Py the general law of the State, highways within the limits of towns must be made and kept in repair by the towns in which they respectively lie. This general rule was modified by the recent statute, so far as to allow the commissioners, on laying out a new highway in any town or towns, to assign a certain proportion of the expense to another town or other towns in the vicinity, and in the same county or counties. The road whose expenses may be thus apportioned is the road prayed for, whether lying-in one or more towns ; and the town or towns upon which the burden is in part to be shifted, are other towns than those in which the road is laid out, and in the vicinity. The language of the statute does not reach to the present case. Here the road is laid out in' the towns of Deerfield and Oandia, and the order of the commissioners undertakes to assign to Deerfield, one of the towns in which the road is laid out, a certain proportion of the expense of constructing that part of the road which lies in the other town. The case, therefore, does not come within the terms of this provision of the statute.

And the provision in the second section of the statute for enforcing performance of the judgment apportioning the expense, is directed against a town or towns “ other than the town or -towns” through which the road is laid out, and the authority to raise money to meet the judgment is given to any “ other town,” &c.

We are of opinion that this case does not fall within the statute giving the commissioners power to apportion part of the expenses of a road on other towns.

The petitioners contend that, if the order of the commissioners apportioning an additional share of the expense on Deerfield is not warranted by the statute, that part of the report shall be rejected, and the report accepted as to the residue, establishing the road, and leaving each town to make the part of the road lying within its limits. But we think the report must be recommitted.

In Dudley v. Cilley, 5 N. H. 560, the court say, that in determining the question whether there is occasion for a highway, three things are to be considered: “ 1. The public exigency and convenience ; 2. The burden that is to be imposed upon the town or towns where the road is to be laid out, in making and keeping it in repair ; 3. The rights of individuals whose lands may be taken for the purpose.” The amount of burden imposed on the towns is one, and a very important consideration for the commissioners on a petition to lay out a highway. The towns ought not to be excessively burdened. A just proportion must be observed between the amount of public accommodation and the severity of the task proposed to be laid on the town. In this case the court cannot infer that the commissioners would have laid out the road, if Candía were left to bear the whole expense of making it within her limits. We must suppose that their decision laying out the road went on the ground and on the condition that Candía was to be relieved from the expense of building her part to the amount of six hundred dollars.

Report recommitted to the County Commissioners.