Haywood v. Charlestown , 34 N.H. 23 ( 1856 )

Fowler, J.

By the first section of the act of July 3, 1829, (laws of 1830, p. 573,) in force when the highway in controversy was attempted to be laid out, it was enacted, “ That whenever there shall be occasion for any new highway in any town in this State, the selectmen of such town be and hereby are authorized and empowered, on application made to them in writing, to lay out the same,” &c., followed by regulations as to the mode and manner of procedure to be adopted in exercising this authority.

By this statute the selectmen of towns were constituted a judicial tribunal for laying out highways within their respective towns. State v. Richmond, 6 Foster 285. The towns themselves have no authority in relation to the subject.

But it is made an essential prerequisite to the jurisdiction of this tribunal, that an application in writing should first be made to them. Their authority does not extend to the laying out of highways generally, at their own discretion, or upon instructions from the town. They can only lay them out upon applications in writing, made to them for that purpose. The application in writing is essential to give them jurisdiction of the subject matter of a contemplated highway, and the record should properly show the existence of whatever is essential to their jurisdiction. Every thing will be presumed to be without their jurisdiction which does not distinctly appear by the record to be within it. Morse v. Presby, 5 Foster 302.

If they shall proceed to act where no written application has been made to them, their authority by the express terms of the statute not extending to such case, their proceedings are merely and absolutely void. Their want of legal authority cannot be supplied. No act or assent of parties can remedy the want of jurisdiction, nor can the exception be waived. State v. Richmond, 6 Foster 239, 240, and authorities.

In the case before us, it was not proposed to show that any written application was ever made to the selectmen to lay out the highway in controversy. No offer was made to show any search for or loss of such application. Indeed, it appeared that the town were called together to decide upon the propriety of laying it out themselves, and they voted to submit the matter to the discretion of the selectmen. This action of the town clearly conferred no jurisdiction in the premises upon the selectmen, and the subsequent action in refusing to discontinue the road, in causing it to be constructed and kept in repair, and the land damages to be paid, could not do it. The town might well refuse to discontinue what had never been established.

The provision of the seventh section of the fifty-third chapter of the Revised Statutes, that “ no highway that has not been laid out agreeably to statute law shall be deemed a public highway, unless the same has been used by the public for a term of time not less than twenty years,” is conclusive against the position taken by the plaintiff’s counsel on the trial, that the jury might presume the highway to have been legally laid out, from the length of time it had been wrought by the town and used as a highway by the public. It was only seventeen years from the construction of the road to the date of the accident, and no such presumption, by the express words of the statute, could arise in less than twenty years. The position that the jury might presume the highway to have been legally laid out, was only another form of saying that the highway might be deemed a public highway, contrary to the special enactment of the statute, it having been in use for less than twenty years. To hold that such a presumption might rightfully be made, would be to completely nullify the provisions of the statute.

It has been contended in the argument that it was intended by the position that the jury might presume the highway to have been legally laid out, only that the evidence proposed and offered tended to prove the existence of an application in writing to the selectmen to lay out the road, and that the question should have been submitted to the jury to find upon this evidence whether there was such written application. If such were the intention, and it were proper to raise that inquiry notwithstanding the statute, the question first arising would be whether the evidence offered had any natural and legitimate tendency to show that such an application in writing was ever presented to and acted upon by the selectmen. And we do not perceive any thing in the evidence that had such tendency. On the contrary, taken together, it would seem to us to have a decided tendency the other way, and to tend very strongly to rebut the existence of such written application, and to show that the road was laid out by the selectmen, in the exercise of their discretion, under the vote of the town. The article in the warrant seems to be based on an assumption that the authority to lay out was vested in the town, and the vote passed was a mere attempt to delegate this assumed authority to the discretion of the selectmen. The record of the laying out is perfectly consistent with the idea that the selectmen did it in the exercise of this delegated power, within their discretion. The refusal to discontinue, the making and keeping in repair of the road by the town, and the payment of land damages, could have no legitimate tendency to show the existence of an application in writing, because such application was essential to the jurisdiction of the selectmen, and no acts or admissions of the town could remedy the want of jurisdiction. As the jurisdiction depended on the existence of the previous application in writing, to hold that the acts of the town were competent, and tended to show such an application, would be to hold in effect that such acts could remedy the want of jurisdiction, and thus accomplish indirectly what could not be done directly.

As we are of opinion that the rulings of the court below were correct, according to the provisions of the case, there must be

Judgment for the defendant on the nonsuit.