Bridgewater v. Grafton County

The questions in this case arise on an exception to the decree of the court requiring the county of Grafton to aid the town of Bridgewater in defraying the expense of repairing a bridge that crosses the Pemigewasset river in the northerly section of the town, on the highway leading from Plymouth to Ashland, and constituting a part of the main thoroughfare for north and south bound travel through the county. In support of the exception two positions are taken. The first is that section 2, chapter 73, Public Statutes, does not authorize the court to require a county to aid a town in defraying the expense of repairing a highway or bridge, except where the petitioning town would not be entitled to aid from other towns under section 4 of the same chapter, and would itself have to bear the whole burden unless aided by the county. The second is, that if section 2 does confer such authority, there is no evidence in the case from which the facts essential to the decree against the county could be found.

Under the general law of the state, every town is required to build and keep in suitable repair for public travel all highways and bridges within its limits. P. S., c. 75, s. 1. This general rule has been modified from time to time by the enactment of laws relieving towns under certain circumstances from a part of the burden thus imposed. P. S., c. 73, ss. 2, 4; Ib., c. 69, ss. 11, 12, 13. The essential provisions of section 2, chapter 73, were first enacted in 1840. Laws 1840, c. 500. Its jurisdictional requirements have not been altered. The only material change in the law is the omission of a provision authorizing the court to order the whole expense to be paid by the county. Laws 1840, c. 500; R. S., c. 55, s. 18; G. S., c. 66, s. 2; Comm'rs' Rep. G. S., p. iv; Ib., c. 67, s. 2. It was not until 1867 that section 4, chapter 73, was enacted. Its provisions are not inconsistent with those of section 2, but are supplemental to them. The questions that arise under each are substantially the same. Rye v. County, 68 N.H. 268. Both were entered in furtherance of the same purpose — to relieve towns of a part of the burden of repairing highways within their limits when equity and justice should require it. The decree against Plymouth and Ashland for equitable contribution was not, matter of law, determinative of Bridgewater's right to equitable contribution from the county, and the decree against the county discloses that it was not as a matter of fret. Hudson v. Nashua, 62 N.H. 591, 594. The terms "the expense" and "whole expense," as used in the statutes, mean the same; and the court had authority to order the county to pay such part of the whole of Bridgewater's burden in repairing its portion of the bridge as it appeared that equity and justice required.

Whether the whole expense of repairing a highway or bridge is burdensome to a town, is a question of fact. "There is no one unqualified test of burdensomeness. All the circumstances are to be considered, — the extent and cost of the repairs, the relative ability of the town and county, the location and character of the road, the portion of the public benefited by it, and any other evidence that justly bears on the broad question whether the county should equitably be subjected to a portion of the expense." Rye v. County, supra, 268, 269. Tested by this rule, there is evidence from which the court could find the facts essential to the decree.

Exception overruled.

All concurred.