Eames v. Northumberland , 44 N.H. 67 ( 1860 )

Bartlett, J.

A petition is essential to the jurisdiction of selectmen to lay out a new highway. Pritchard v. Atkinson, 3 N. H. 337; Wiggin v. Exeter, 13 N. H. 307; Raymond v. Griffin, 23 N. H. 335; State v. Canterbury, 40 N. H. 311; Cole v. Canaan, 29 N. H. 93. The petition being the foundation of their jurisdiction to lay out a particular highway, it follows that upon a petition for one highway they have no authority to lay out another ; for there is no petition for such other highway before them, and without a petition they can not act. In the present case the road attempted to be laid was not the one prayed for, as, under the circumstances stated, we must hold the termini substantially different. The road not having been used as a public highway twenty years, the defendants are not estopped to take this objection. Hall v. Manchester, 39 N. H. 303 ; Smith v. Northumberland, 36 N. H. 9 ; Northumberland v. Atlantic & St. Lawrence Railroad, 35 N. H. 576 ; Haywood v. Charlestown, 34 N. H. 28. As the objection is well taken, and goes to the jurisdiction of the selectmen ovey the subject matter, the laying out must be held void. State v. Richmond, 26 N. H. 239 ; Haywood v. Charlestown ; Smith v. Northumberland; Griffin's Petition, 27 N. H. 346. As the highway was not legally laid out by the selectmen, the vote of the town would be insufficient to show a discontinuance of it, if it had been in any other way a legally established highway ; but the road not being a legally established highway, the vote wras simply of no effect. As the jury could not, upon the facts stated, have found a discontinuance of a highway, the plaintiff has failed to make a case entitling him to damages under section 3 of chapter 54 of the Revised Statutes. According to the provisions of the case, the verdict must be set aside, and

Judgment entered for the defendants.