State v. Rye , 35 N.H. 368 ( 1857 )

FowleR, J.

Two general objections to the validity of the proceedings of the Common Pleas in laying out the highway in question, appear from the case to have been taken and insisted upon at the trial. One, that the court had no jurisdiction to lay out the highway; and the other, that if they had jurisdiction, it was not properly exercised, and the highway was not, for that reason, legally laid out. In the argument, the grounds of these objections are specified, and we have considered them in the order in which they are therein set forth.

The first rests on the alleged informality of the recommitment of the report for amendment, at the February term, 1853. It would seem that the presiding justice, not having time probably to consider and determine the questions arising upon the report of the commissioners, during the session of the court, with the assent, or without any objection from the parties, took the papers home with him, and subsequently returned them to the clerk, with an order of recommitment. We discover no legal objection to this method of procedure. It is sometimes impossible for the court deliberately to examine and arrive at satisfactory conclusions, upon all the numerous points raised in the various cases pending, during the continuance of a term; and if, without objection from any party, he take home with him the necessary papers, and afterwards return them to the clerk, with orders for recommitment or transfer, as circumstances may require, we are aware of no valid objection to the practice.

In the case before us, no judgment having been rendered during the term, if there were no order or agreement to the contrary, the petition stood continued as a matter of course, and the order of recommitment must be regarded as having been subsequently made, as of the term, by the mutual consent of all parties. The date of the clerk’s order of recommitment is erroneous, but immaterial. It must be treated as made at the February term, and regularly should have been entitled as of that term; but there is nothing fatal in the clerk’s error in affixing to it the date, when it was actually entered upon the docket by him. Had it been shown that either party insisted that the questions raised upon the report should be decided during the term, or that the further consideration of them should be postponed to the next term, a different state of facts would have been presented, deserving, perhaps, of serious consideration.

The second objection relates to an alleged variance between the description of the road prayed for in the petition, and the road as laid out in the.report of the commissioners; one terminus of the road asked being a stake and stones seventy feet northerly of a certain monument, and the corresponding terminus of the road laid out, a stake and stones seventy feet north-easterly of the same bound. We think there is no good foundation for this objection. In the ordinary acceptation of words, a point northeasterly of a given monument, is northerly of the same monument ; and the distance named being the same in both cases, a strong presumption arises not only that the same point was intended to be, but actually was described.

The next objection is founded on the supposed repugnancy of ■ the report to itself, it not having been accepted until September term, 1853, while the town is required by it to complete the construction of the road laid by July 1,1853. It is a sufficient answer to this objection, that it is not essential to the validity of a report laying out a highway, that the commissioners should fix the time for its construction. If no time be specified in the report or the judgment of the court, it is ordinarily the duty of the town to construct immediately, or as soon as practicable, and they are liable to indictment if it be not completed and opened to public travel within a reasonable period. The portion of the report fixing the time for the completion of the road, after that period had elapsed, became entirely unimportant, and might and should properly have been stricken out. It had no effect whatever upon the judgment rendered, and it was entirely immaterial whether it were erased or not. Its remaining in no way injuriously affected the proceedings, except to encumber the record with superfluous matter.

But all these objections to the regularity and legality of the action of the court — to the proper exercise of its jurisdiction, if it had any in this case — even had they contained any thing that, if seasonably urged, might have been fatal, came too late on the trial of this information. The Court of Common Pleas having by the statute express and plenary authority to lay out highways, its judgment, establishing any particular highway, cannot be called in question collaterally, for any want of regularity in the proceedings, but remains good until reversed or set aside upon certiorari. State v. Boscawen, 8 Foster 195; State v. Richmond, 6 Poster 232; Robbins v. Bridgewater, 6 N. H. 524, and other authorities cited by the counsel for the State.

The fourth objection goes to the jurisdiction of the Common Pleas, and, if well founded and seasonably taken, must prevail. It is, that the road asked for in the petition and laid out by the commissioners, was only necessary as part of a continuous route in Eye and North-Hampton, and for that reason the selectmen of Eye had no authority to lay it out, when petitioned for that purpose; and consequently there could be no appeal from their refusal to lay the same. There can be no doubt, on the doctrine of Griffin’s Petition, 7 Poster 343, that this objection must have been fatal, if seasonably urged and sustained. The contemplated road extending into two towns, the jurisdiction of the Court of Common Pleas and road commissioners in regard to it, was original and exclusive, and the selectmen of the several towns bad no preliminary or concurrent jurisdiction as to the parts of the entire route in their respective towns.

But this objection, too, is waived, if not seasonably taken, unless apparent from the record itself. The Court of Common Pleas having complete and final jurisdiction of the subject matter of highways, with full power to establish a highway entirely within the limits of a single town, where the selectmen, upon petition therefor, have neglected or refused to lay it; if a petition to that court allege that the selectmen have been petitioned to lay out a road entirely within the limits of the town, and have neglected or refused to do it, and it does not appear from the petition itself, and is not shown by evidence, before a reference thereof to the commissioners, that the road is a portion of a continuous route in two or more towns, no portion of which is necessary unless the whole is laid, the court will not afterwards, even before judgment accepting the report and establishing the highway, receive evidence aliunde to show want of jurisdiction. White et als. v. Landaff, 35 N. H. 128.

Much more cannot such evidence be received to impeach a judgment collaterally,' after it has been rendered by a tribunal appealing by the records to have possessed full jurisdiction of the subject matter. If want of jurisdiction be apparent on the face of the proceedings, it may be taken advantage of at any stage thereof. Dinsmoor’s Petition, 6 Foster 356; Griffin’s Petition, 7 Foster 348; State v. Canterbury, 8 Foster 226. But if not thus apparent the objection must be taken before reference of the petition, or it will be regarded as waived. The allegations of the petition, conferring jurisdiction, are to be taken as true, if not denied and confuted at the proper stage of the proceedings, and that is, before reference of the petition. Notice is given to the town and its selectmen; the objection, if it exist, is one peculiarly within the knowledge of the town and its agents; and if they choose to lie by and take the chances of a report in their favor before availing themselves of it, there can be no injustice in denying them the right to urge it afterwards. On well established principles, this court will not go out of the record to find evidence to impeach the proceedings and judgment of a tribunal having by the record full and complete jurisdiction of the subject matter on which its judgment has been exercised. State v. Boscawen, 8 Foster 195; White v. Landaff, 35 N. H. 128; Stevens v. Goffstown, 1 Foster 454; Toppan’s Petition, 4 Foster 50; Kennet’s Petition, 4 Foster 141.

Upon this view, the evidence admitted on the trial against the objection of the State, tending to prove facts calculated to contradict the material allegations of the original petition, and to oust the Court of Common Pleas of jurisdiction, by showing the highway in controversy to have been necessary only as part of a continuous route in Rye and North-Hampton, should not have been received. As, however, a verdict was properly directed against this evidence, its admission did not in any way affect the result.

We have thus disposed of all the questions arising upon the case before us. In the argument, however, the defendants insist that if the court had jurisdiction, and the highway were properly laid out and established, or the town is precluded from now objecting to the validity of the proceedings establishing it, still, the neglect to build it was no nuisance under the circumstances shown in evidence at the trial, the road being wholly within an uninhabited pasture, and having no connection with any existing highway except at one extremity, and the public having no means of access to it from the other end, and no occasion to use it without such means of access. It is, moreover, suggested that the road as laid out is not sufficiently connected with an existing highway, even at its eastern terminus. The latter suggestion does not seem well founded upon the face of the report, for although the petition commences at the corner of the Pickering pasture, the report commences at a stake in the highway at that point; so that the fair presumption is, that the highway was laid three rods in width, as well opposite the angle of the pasture as elsewhere throughout its route. Even if but a rod and a half wide at that point, as contended by the counsel for the town, that width might be sufficient to accommodate the travel, until the defect could be remedied.

It is very clear, upon the evidence reported as given at the trial, that no public highway was shown to exist in North-Hampton with which the highway in controversy was connected at its western terminus. It appeared that the selectmen of that town had undertaken to establish a road in accordance with, a vote of the town, and without any petition asking them to lay it for the public accommodation. The town had no authority to act themselves or to instruct the selectmen, and could give the selectmen no authority. Without a petition, the selectmen had no jurisdiction in the premises, and the road they undertook to lay was not established in conformity to statute law, and was, therefore, not a public highway. Rev. Stat., ch. 53, sec. 7; Haywood v. Charlestown, 34 N. H. 23.

There having, then, been shown to be no public highway at one extremity with which the proposed highway had connection, and no open way of any kind there; and the whole extent of the proposed road being through an uninhabited pasture; the evidence, moreover, tending to show that there was no occasion for the public to use it except in connection with what was not a public highway in North-Hampton; the question whether Rye was guilty of a nuisance, in not building and keeping in repair such a road, might well have been raised on the trial. If the public had no means of access, and no occasion by and upon which they could use the new highway, it could be no nuisance not to build and keep it in repair. State v. Boscawen, 8 Foster 226.

But this question was not raised on the trial. The only objections then taken were to the want of jurisdiction and the irregularity of the proceedings of the court in laying out the highway. Had it been proposed to submit the question of nuisance to the jury, a very different aspect might have been given to the evidence. Access to the western extremity of the road might have been shown to exist in various ways. The public might have had the right to pass oyer the road in North-Hampton by that town having purchased the land for the purpose, or by its owners having dedicated it to the public use, or there might have existed a general or special license from, the land-owners so to use it; or the jury might have found the highway useful and convenient for the public, with means of approach to it only from the eastern terminus. There would be manifest injustice in deciding any case upon a point not raised at the trial, and which the parties, therefore, had no opportunity to meet, although such a point might properly have been raised on the evidence. Had the defendants requested the court to submit the question of nuisance to the jury, and that request been refused; or had the attention of the court been in any way directed to that subject with a view to its submission to the jury, and a verdict been thereupon directed for the State, the matter would have been legitimately before us, and we might have felt compelled to set aside the verdict and grant the defendants an opportunity of submitting the question of nuisance to the jury. But nothing of this kind appears, and there is, therefore, no occasion for interference for that cause.

As the objections taken to the validity of the proceedings of the Court of Common Pleas in establishing the highway described in the information, are insufficient, there must be

Judgment on the verdict.