State v. Northumberland , 44 N.H. 628 ( 1860 )

Bellows, J.

Laying out of the case, for the present, the alleged way of necessity around the bend, one question is, whether a bridge at the place in question would be so connected with other public highways as to be convenient and useful to the public, so that the neglect to build or repair it would be a nuisance. If the bridge, when erected, would be of no public utility or convenience, then the failure to erect it would not be a nuisance. State v. Canterbury, and State v. Boscawen, 28 N. H. 225; State v. Rye, 85 N. H. 380. The case, then, is this: On the south side of the bridge site is clearly a public highway leading to it, and on the north side is also a public highway, extending eighty-five rods, through a meadow under cultivation, but upon which there is no house or other buildings— the meadow consisting of about one hundred acres, and composing part of the farm of one Eames, who resides upon the south side of the river; and the evidence tended to show that in transporting the products of this meadow to his farm, house and barns, the said Eames had occasion to use this highway on the north side of the river and the bridge at the point in question ; but there was no evidence of any occasion to use either for any other purpose. Whether a bridge, if erected, would be so connected with public highways as to be useful and convenient to the public, is a question of fact for the jury, and unless they could not legally have so found it on this evidence, the verdict must stand.

The objection appears to be, that to this eighty-five rods of highway no one would have access, legally, from the northerly side of the river but the owner of this farm; and yet we think it does not, on that account, necessarily lose the character of a public highway. The nature of this use is the same, though probably less frequent, as if his dwelling-house was upon this part of the highway; and although no others might have the right to use it at all, except by virtue of a license to cross his land, yet it has not ceased to be a public highway, nor has his right to use it as such been taken away. Had this road on the north side of the river been cut oif at the distance of one mile instead of a quarter part of that distance, but had still passed several farm-houses, though without connecting with any other road, still the nature of the occasion to use it would have been the same ; that is, confined to those owning land upon it, and such as they might permit to cross such. land. In such a case the road remaining must have been regarded as a public highway which the inhabitants living upon it, and all others who could gain access to it, would have the right to use, and which the town would be bound to keep in repair, and of course would be liable for damages happening in the use of it, so long as such way was not discontinued. So it would be in respect to the road in question, on both sides of the river; and so long as this duty exists in respect to the road, the same duty must exist in respect to the bridge. It is true that in this case the evidence shows but one person who has occasion to use this bridge; and such may be the case in respect to some roads laid out for the accommodation of individuals; and yet, when so laid out, they become public highways which the town is bound to repair. Proctor v. Andover, 42 N. H. 348. In such a case we think it would be no defense to an indictment for not building a bridge that but a single individual had occasion to use the road that led to it. So in the case before us. There is a public highway on each side of the river, and leading to the bridge, which every body has a right to use, although but one person has legal access to the part on the north side from that side, and he only is shown to have occasion to use it. Still it stands much like the case of a road laid out for private accommodation; and we think it can not be held, as a matter of law, that the bridge would be of no public use or convenience.

In State v. Rye, before cited, the court held that if the public had no means of access to the road and no occasion by and upon which they could use the new highway, it could be no nuisance not to build it and keep it in repair. At the same time it is laid down that the jury might have found the highway useful and convenient for the public, with the means of approach only from its eastern terminus, although the land through which it passed was only an uninhabited pasture.

Another question that may arise is, whether a right of way, by necessity, still exists around the bend in the Connecticut river. It seems to be well settled that where a public highway becomes temporarily obstructed and impassable by reason of a flood, a heavy snowdrift, the falling of a tree, or the like, the passenger may pass around such obstructions upon the adjoining land. But this is upon the ground of necessity, and gives to the public no permanent easement around such adjoining land. In the case before us the entire bed of the road has been cut off by the encroachments of the river; and a traveler who had unexpectedly found his course arrested by the sudden and violent destruction of the way, would have been justified in turning into the adjoining land, doing as little damage as possible, in order to pursue his journey. So far the authorities would sustain him, but merely upon the ground of necessity, and when that necessity no longer existed, the right to go extra viam ceased to exist also. This right, indeed, is merely temporary,- and designed to enable the traveler, who is suddenly and unexpectedly obstructed, to continue his journey, but not to give the public a permanent easement in the adjoining land, after notice of this obstruction and an opportunity to seek another outlet. Such a right could not be regarded as included in the easement which has been taken and paid for by the public, and we see no principle by which the public can acquire a permanent easement in the adjoining land which has never been taken for its use. If this right by necessity were to be so extended, then, as a logical result, the land of one over whose land the road was not originally laid, might be taken, and without any compensation, simply because it happened to adjoin that -which had been washed away by the floods. The true view, however, is, that where the road-bed is so destroyed, it is incumbent upon the public to seek a new outlet upon due compensation, and until that is done its rights will be suspended.

These general views as to the temporary character of this way of necessity are sustained in Campbell v. Race, 7 Cush. 408 ; Ang. on Highways, sees. 353-355; 3 Kent Com. 424. As to the general doctrine in respect to the right to go extra viam, see 1 Saund. 323, n. 3; Taylor v. Whitehead, Doug. 745 ; Bullard v. Harrison, 4 M. & S. 387 ; 3 Dane Abr., ch. 79, art. 3, sec. 11.

Should it turn out, upon further examination, that since 1812 the public had acquired by user another right of way around this bend instead of the one existing at that time, and that this road-bed had, although undermined, still remained in this state, the duty of the town to rebuild and keep it in repair would continue, we think, so long as the road was not discontinued, and would not be affected by the fact that it was difficult or expensive. Under such circumstances it would be no defense to this indictment that access to the bridge was cut off, because it would have been occasioned by a neglect of duty by the town itself.

These views render it unnecessary to consider the question of abandonment, although it would seem that the easement would not be lost by non-user for any period less than twenty years, however it might be if the non-user existed for that time. Webber v. Chapman, 42 N. H. 326-335.

Should the respondent elect to go to the jury on the question whether the neglect to rebuild the bridge is a nuisance, there should be taken into consideration the means of crossing, without such bridge, by fording or otherwise; the occasion there would be to cross at that point; whether it would be frequent and continued, or only exceptional and rare ; or of a character so trifling as to be of no substantial importance ; whether the bridge would be so connected with other public highways, to which there is access, that it would be of public utility and convenience ; and whether the want of access, if it exists, is caused by the fault of the town in not keeping in repair the highways leading to the bridge. The respondent, having elected a trial by the jury, as provided in the case, the

Verdict is set aside.