Smith v. Northumberland , 36 N.H. 38 ( 1857 )

FowleR, J.

The authorities cited by the plaintiff do not seem to us to have any bearing in his favor in the present case. There do not appear ever to .have been any proceedings, by any authority having jurisdiction of the subject, to lay out the road in controversy. In fact, the case finds that it had never been laid out agreeably to the requirements of statute law, and had not been used by the public for twenty years. No attempt to lay it out is shown ever to have been made. It is therefore entirely clear, upon the authority of Northumberland v. Railroad, 85 N. H. 574, and Hayward v. Charlestown, 34 N. H. 23, that it was not a public highway for the good condition and repair of which the defendants were responsible, or for injuries resulting from defects in which the defendants can be holden liable. Rev. Stat., ch. 53, sec. 7; Gurnsey v. Edwards, 6 Foster 230.

If private individuals assume to act and do act without any legal authority, or if authorized tribunals or officers proceed to act in cases to which their jurisdiction or authority does not extend, their proceedings are merely and absolutely void. Their want of legal authority cannot be supplied. No act or assent of the parties can confer any jurisdiction. The exception cannot be waived. State v. Richmond, 6 Foster 239, 240, and authorities.

According to the provisions of the agreed case, there must therefore be Judgment for the defendants.