Hopkinton v. Winship , 35 N.H. 209 ( 1857 )

Eastman, J.

The original petition of Winship and others was filed August 21, 1855, and was for a new highway in the towns of Henniker and Hopkinton ; and, being in due form, it showed upon its face an application falling within the jurisdiction of the Common Pleas. Petitions relative to roads may be presented to the Court of Common Pleas when there shall be occasion to lay out or widen and straighten a highway over lands in two or more towns, one of which is in the county where the petition is presented. Rev. Stat., chap. 50, sec. 1.

Upon the presentation of this petition, the town of Hopkinton objected to its reference to the road commissioners, upon the ground that, although the petition was in form for a highway in both towns, yet in fact it was for a road in Hopkinton alone, and was a portion of a highway that had been discontinued in 1853 ; and that there having been no previous application to the selectmen to lay out the same in Hopkinton, the court had no jurisdiction of the case.

This objection, going to the jurisdiction of the court, if well taken must prevail. But how could the matter stated in the objection be made to appear at that stage of the proceedings, before the petition was referred ? The court could not dismiss the petition till the fact was established that it was for a highway in Hopkinton alone. The petition itself was for a road from town to town, and of it the court had jurisdiction. Parker, C. J., in Sumner’s Petition, 14 N. H. 271. There would seem to be no way to decide this question before the petition was referred to the commissioners, but for the court to go into a full examination of the merits of the whole case. And it is quite clear that this could not be done, for it involved the decision of the fact whether the public good required that the road should be laid out as petitioned for; and that fact could be settled by the commissioners alone. Woods, J., in Hampstead's Petition, 19 N. H. 349.

Upon the reference to the commissioners the question would necessarily arise whether the road should be laid in both towns or only one ; and if the report showed that the highway was laid out in one town only, the Common Pleas would hare no jurisdiction to accept it, because the report itself would negative the allegations of the petition, on vrliich alone their jurisdiction depended. Sumner's Petition, 14 N. H. 268. The report would show that the petition should have been presented to the selectmen of the town, and that it was an evasion of the statute to go to the court in the first instance. In such a case the proceedings would necessarily fail.

The Common Pleas, then, decided correctly in declining to go into an examination of the question preliminary to the reference of the petition to the commissioners. It was well enough to except to the jurisdiction on the presentation of the petition; but that was not necessary in a case like the present, because the exception, if well founded, must necessarily appear upon the report of the commissioners ; and when an exception to the jurisdiction is shown by the record and proceedings, it may be taken at any time. Griffin's Petition, 7 Foster 343. But it is otherwise where the subject matter is within the jurisdiction of the court, and there is nothing in the proceedings showing a want of jurisdiction. White & als. v. Landaff, 35 N. H. 128.

Upon the coming in of the commissioners’ report, the same exception was taken to the jurisdiction, and for the same reason. But the facts do not sustain the exception. The report shows a road laid out in both towns, according to the prayer of the petition, with the same termini as those stated in the petition. It was no valid objection that the route was in part over an existing highway, since a portion of new road was laid out in each town. Upon the petition for a new highway, selectmen and road commissioners may lay out a road in part new and in part over and upon an existing highway. Raymond v. Griffin, 3 Foster 340 ; State v. Boscawen, 8 Foster 195.

The piece laid out in Henniker was quite small; but no fraud is attempted to be shown, and so long as the commissioners report that the public good requires a connecting road, in the absence of .fraud, the court will not look into the length of the road.

The fact, too, that there had once been a road in one of the towns where this was laid, could make no difference, since, at the time it was laid by these commissioners, no road existed on that route, and the laying was a new road.

A further exception was taken that the report did not show any change of circumstances, since a part of the road laid out had been discontinued in 1853. But this exception was rightly overruled. Upon a petition for the laying out of a highway, the statute requires no examination or report by the commissioners, as to any change of circumstances that may have taken place since the discontinuance of a highway upon that route. The question for them to examine and report upon is, whether the public good requires the road to be laid out; and it is only upon petitions to discontinue highways that the commissioners are required to report whether any change of circumstances has taken place. Woods, J., in Hampstead’s Petition, 19 N. H. 347.

A still further exception was taken, that evidence was received on the hearing before the commissioners, subject to exception, that persons living on one side of Contoocook river, and owning wood lots on the other side, would have their private interests promoted by the laying out of the highway. It is undoubtedly true that highways can only be laid out upon public considerations. But public interests are made up of private, and the good of the public is but the good of various individuals that form and compose the public. It is perfectly proper that the individual interests of all should be considered by the commissioners, in coming to the conclusion whether, upon the whole, the public good requires the road to be made.

Upon a review of all the exceptions taken to the acceptance of the report, we think the Common Pleas decided correctly in overruling them and ordering judgment on the report; and that the petition for the certiorari should consequently be denied. In arriving at this conclusion we have not turned our attention to the position taken in the argument, that the exceptions were most of them to matters falling within the discretion of the Common Pleas, and therefore not open to examination upon cer-tiorari, because we are satisfied with the correctness of the ruling, even were they questions not open to reexamination.

Petition denied.