Milford's Petition , 37 N.H. 57 ( 1858 )

Fowler, J.

The first objection to the validity of the petition for discontinuance, that there never was any such road laid out as is therein set forth, seems fully overthrown by the facts stated in the case itself. The petition describes the road as a new public highway, laid out in Milford by the Court of Common Pleas, October term, 1854, on the petition of Reuben Hutchinson and others, across Souhegan river, near Jones’ corner, so called. The case finds that at that term of court a new public highway was laid out in Milford, on the petition of Reuben Hutchinson and others, across Souhegan river, near Jones’ corner, or Jones’ crossing, by the acceptance of the report of the board of road commissioners for that purpose. No material difference between the general description of the road laid out, in the petition and in the record of laying out, as stated in the case, or between the road as described and the road as actually established, has been attempted to be pointed out to us, nor have we been able to discover any. The only discrepancy apparent is, that, in the record as set forth, the place of crossing the Souhegan river is described as equally well known by the name of Jones’ crossing as by that of Jones’ corner, while the petition only designates it by the latter appellation, although the record clearly indicates, by using it first, that the latter is the more usual name of the locality. This seems to us a discrepancy without any substantial difference, and utterly unworthy of serious consideration.

The second objection, that Milford never voted, as set forth in the petition, does not appear to be sustained by the facts of the case. The petition alleges, in substance, that the town of Milford, at a legal meeting holden on the fourth day of December, 1857, voted to discontinue the new public highway laid out in said town by the Court of Common Pleas, October term, 1854, across Souhegan river, near Jones’ corner, so called, on the petition of Reuben Hutchinson and others. The case finds that the article in the warrant was, “ To see if the town will vote to discontinue the road in said Milford, laid out by the road commissioners across Souhegan river, near Jones’ corner, so called,” and the vote was to “ discontinue the road in said Milford, laid out by the road commissioners across Souhegan river, near Jones’ corner, so called,” following the language of the article. We suppose it was intended by this objection to insist that there is such a variance between the description of the highway proposed to be discontinued, as the same is set forth in the petition, and as it is described in the article in the warrant, and the vote of the town-meeting thereon, that it follows as a legal conclusion that they cannot be the same road. But to this result we cannot assent.

The only difference between the description of the road in one case and in the other, which strikes us as susceptible of being considered in any way important, is, that in the warrant and vote it is alleged to have been laid out by the road commissioners; while in the petition it is said to have been established by the Court of Common Pleas. Now, as matter of fact, both allegations are strictly true. The highway was actually laid out by the road commissioners, while it was legally established by the judgment of the Court of Common Pleas, at the term mentioned in the petition, in accepting the report of the commissioners. Both descriptions of the manner in which the road was laid out are sufficiently true and sufficiently accordant with each other, to prevent any misunderstanding of the case by the court. The road commissioners were the tribunal that visited Milford, and with which its inhabitants and legal voters had actual acquaintance; and hence the propriety of describing the road, as laid out by them, in an article for the consideration of those voters, and in their action upon that article. But the law required the doings of the commissioners to be sanctioned by the court before they could be effective; and it was therefore more proper, in a legal proceeding before that court, to recognize its own action as legally decisive in establishing the road.

But it is farther insisted that the petition is defective in not fully describing the highway laid out and sought to be discontinued. By this we understand it to be contended that the petition for discontinuance should have described the highway, proposed to be discontinued, by metes and bounds, courses and distances, from one terminus to the other, following the exact and detailed description of the laying out, in the words of the field book of the surveyor employed by the commissioners. It seems only necessary, to show the absurdity of this position, to state the fact, that not unfrequently such detailed description occupies several pages of manuscript. If the petition must embrace it, the article in the warrant, and the vote of the town, should also contain the same identical description; and all for no practical purpose or result whatever. Not one in a hundred of the citizens of a town knows or cares any thing about the particular courses and distances, metes and bounds, of a new highway. Neither is the public in any way interested therein. They do not influence in any considerable degree the judgment of the court or commissioners. Their only use is to determine the exact line for the location and construction of the highway, when it comes to be bnilt and fenced out. If, then, the article in the warrant so describe the highway proposed to be discontinued, that it is apparent the citizens must have understood distinctly the matter submitted for their consideration, and the vote of the meeting shows clearly that they acted upon that matter, the subsequent petition for a discontinuance will be sufficiently certain, if, by an explicit reference to the proceedings in the laying out of the road and to the action of the town, it shall enable the court and commissioners to know and understand, without possibility of mistake, what highway the town voted and now ask to have discontinued. This may be done, and in practice almost uniformly is done, by some general description of the highway, rather than by a minute and detailed recital of the courses and distances, metes and bounds between its termini.

As, in our judgment, the objections taken to the petition in the case before us, should all have been overruled, the order of the court below dismissing the petition was improperly made, the exceptions thereto must be sustained, the order vacated, and the petition reinstated upon the docket.

Exceptions sustained.