State v. Canterbury , 40 N.H. 307 ( 1860 )

Sargent, J.

The Eevised Statutes (chapter 49, section 1) authorize selectmen of towns, upon petition, to lay out any new highway, or to widen and straighten any existing highway within their town, &e.; and by chapter 50 the Court of Common Pleas is invested with the same powers in certain cases. There being a distinction made in the law between laying out new highways and widening and straightening existing ones, the question is raised by this case, as to where the line is to be drawn between them; for although it is well settled that, upon a petition for a new highway, selectmen and commissioners may lay out a road in part new, and in part over and upon an existing highway [Hopkinton v. Winship, 35 N. H. 209, and cases cited], yet it would not be competent, upon a petition for a new highway, to undertake merely to widen an old one without laying any part new; and if, upon such a petition, there should be a report disclosing such a widening only, the court might not have jurisdiction to render a valid judgment. So upon a petition to widen and straighten an existing highway; if selectmen or commissioners should lay out an entirely new road from one terminus to the other, without intersecting the existing highway at any intervening point, and these facts appeared in the report, no valid judgment could perhaps be rendered upon it. "Whether the new highway might answer as a substitute for the old, so that the latter might be discontinued or not, might not, under our statute, be a conclusive test. But the question here raised is, whether, upon a petition to widen and straighten an existing highway, the selectmen or commissioners may vary at all from- the line of the old highway ? That they may take such additional width of land upon either side as is needed, there can be no doubt. But this they could do under the provision for widening alone. And can they do anything more under their power to straighten, than to remedy or lessen those slight curves that exist in it, as far as they may, by taking the additional width -of land upon one side or the other of the existing highway, as shall best accomplish that object? We think they may, and that the word straighten has a meaning and an application broader and more extensive than the mere widening of the way. We think they may straighten the existing highway by cutting off short curves, and may in that way vary entirely from the route of the old road. And what appears in this case is by no means sufficient to show that what was done by the commissioners here could not properly and legitimately be done upon the petition to widen and straighten. That the line of the road was varied in places four rods, or even more than that from the line of the old highway, would not necessarily show any such laying of a new highway as could not properly take place upon this petition.

In Massachusetts their statute formerly authorized the court “ to lay out new county roads, or to turn or alter old roads,” on application made, &c., under which statute it was held, that, upon a petition to turn or alter an old road, the court might make any turns from the old route, or alterations in it, passing in places wholly over new ground, and leaving the old route at a considerable distance, yet that this was not laying out a new highway, within the meaning of that term as used in the statute. They also held that when such alterations were made in an existing highway, and established by the court, this alone operated in law as a discontinuance of the part altered. And in one case, where the locating committee reported in favor of the alteration prayed for, but recommended that the old road thus altered should not be discontinued, and judgment was rendered on that report, certiorari was brought to quash these proceedings ; and it was held that the effect of this judgment in law was virtually to lay out a new road, where none had been petitioned for, and the proceedings were quashed. Commonwealth v. Westborough, 3 Mass. 406; Commowealth v. Cambridge, 7 Mass. 158.

By our statute, so long as the departures from the old route are evidently for the purpose of straightening the existing highway, and are not of very considerable length, they may be proper upon a petition like this. But should a new highway, evidently such, be attempted to be laid out upon a petition to widen and straighten only, then the jurisdiction is exceeded, and the action of the court is void, or at least voidable.

Having settled that the facts stated in this case do not show any new road laid, and nothing more than a proper straightening of an existing highway under the statute, it becomes unnecessary to consider the question of waiver raised in the case.

Upon the other question, as to the admissibility of the evidence offered, if we understand the case, there would seem to be no doubt. The case itself, at first, seems to be susceptible of a double construction. If it means that the ruling of the court below was, that, the widening of the road at the place in question must have been so made that the additional strip of land here taken must have been converted into a road-bed, and made suitable for travel; and because this had not been done that the town was necessarily liable, however good and sufficient the old traveled track may have been, then the ruling was undoubtedly wrong, because there were various uses that this land may have been needed for beside a roadbed. It frequently becomes necessary that a road should be widened in our country towns, merely for the purpose of removing a wall or fence on one side further back, so as to prevent the snow in winter from drifting over it into and across the traveled track. Highways are sometimes widened at certain points in order to furnish the materials, such as stone, gravel, and hard-pan, with which to repair the road-bed, when the additional land taken was never, any part of it, designed or needed for a road-bed or traveled track, and was never taken for any such purpose. But it might be necessary that something should be done by the town, in order to fit it for the uses for which it was designed. If the widening here was for the purpose of throwing back a stone-wall or fence, to prevent the snow drifting into the traveled track, then the wall or fence must be moved back upon the new line. If it was widened to furnish materials to repair the road-bed, then a wall or fence might need to be removed in order to make it accessible for the purposes for which it was needed to' be used; and if it was needed for a traveled track, then it must be worked and put in proper condition for the travel needing to pass over it.

Now the cage finds that this strip of land, added to the old road here, by the commissioners, was wholly impassable, so that if this land was needed for the road-bed, then the case negatives the presumption or the possibility that it had been made before it was laid out, or that it was in such a state as to be sufficient for such use without the town doing any thing upon it. State v. Canterbury, 28 N. H. 226. If this additional land was needed for any other purpose, such as the removing of a wall or fence, or other obstruction, then the case finds that this had not been done; for the court ruled that the respondents were liable, if that widening had not been made so as to be fit for use by the public. If it had been made fit for use by the public, whatever that use may have been, then of course by the case the respondents would not be liable. The case, therefore, must be understood to find that this strip of land was not fit for the use for which it was designed by the commissioners. It also appears, by the offer of the respondents themselves, in proposing this testimony, that the town had neglected to widen the existing highway by the addition of this strip of land, and the case also finds that the town had done nothing upon it.

The case, then, as we understand it, finds that this additional strip of land here was not fit for public use, whatever use it may have been designed for; but that something must be done to fit it for such use, and that this something, whatever it may be, had not been done, and that, too, after some six years had passed after the judgment was rendered upon the report widening the road. This is an information against the town for “ unreasonably neglecting to alter” and put in good repair a highway which has been widened and straightened therein, founded upon the second cause assigned in section 1 of chapter 58, Bevised Statutes, for which towns may be fined. Upon the facts stated in the case, then, the only question for the jury was, whether the town had unreasonbly neglected to do something, which was necessary to be done in order to fit this new portion of the highway for the use and purpose for which it was designed. But it was settled, in State v. Landaff, 22 N. H. 588, that it followed as a conclusion of law, upon facts not making nearly as strong a case as those here presented make, that the town had unreasonably neglected. If the town had thus unreasonably neglected in the case before us, it would be a conclusion of law that it was to the public nuisance, and an offer to prove, under such circumstances, that there had been no nuisance, &c., would be simply an offer to prove that an admitted nuisance was not a nuisance; that what the statute makes a nuisance was not in fact so.

If there was no nuisance in the town neglecting to alter this road, so as to fit it for public use, in six years, there probably never would be, and the offer of the respondents would be substantially to prove that no change in the highway here was ever necessary, which could only have been proper evidence to be submitted to the commissioners who widened the road; but, after they have once settled, the question of the public necessity of this change would not afterwards be competent in any proceeding like this.

There must be, therefore,

Judgment upon the verdict.