Spaulding v. Town of Groton

• Decision Date: 27 July 1894
• Citation: 44 A. 88,68 N.H. 77
• Parties: SPAULDING v. TOWN OF GROTON.
• Court: New Hampshire Supreme Court

44 A. 88

68 N.H. 77

SPAULDING

v. TOWN OF GROTON.

Supreme Court of New Hampshire. Grafton.

July 27, 1894.

Action by A. M. Spaulding against the town of Groton. Judgment for defendant.

Case, for personal injuries, alleged to have been occasioned by a defective highway. Facts agreed. April 16, 1886, a petition signed by several parties was presented to the selectmen of Groton for a new highway "beginning at a stake and stones near the water trough nearly opposite the house of John Irving on the highway leading from Rumney to Groton Hollow,' so called, in said town of Groton; thence in a southerly direction about 100 rods to a stake and stones in said highway near the top of the last steep hill on said highway; thence following said highway as now traveled to a stake and stones in said highway near the southerly lane leading to the farm of Clinton French; thence in a southerly direction about 75 rods to a stake and stones near the school house in said Groton Hollow, in said town of Groton." May 6, 1886, the selectmen laid out a highway, and made a return thereof as follows: "We are of opinion that for the accommodation of the public there is occasion for the same, and we therefore lay out a new highway as requested in said petition, beginning at a stake at the water trough nearly opposite the house of John Irving; thence in a southerly direction 120 rods over land of Charles Spaulding; thence south over land of A. P. French's heirs 45 rods to a stake in the old highway; and the highway to be 50 feet wide." The last bound mentioned in the return is not identical with the last bound mentioned in the petition, but is about 178 rods from it in a northerly direction. The road, as constructed, runs on various courses. If it is held that the road as laid out and constructed is not a legal highway, the plaintiff is to become nonsuit; otherwise, the case is to stand for trial.

George M. Fletcher, Joseph C. Story, and Bingham & Mitchell, for plaintiff.

Fling & Chase and Frank N. Parsons, for defendant.

PER CURIAM. 1. The judgment of the selectmen laying out the way in question, having been rendered on a petition properly before them (Gen. Laws, c. 67, § 1), is not open to collateral attack if the way laid out is substantially the way prayed for in the petition (Brown v. Brown, 50 N.H. 538; Home v Rochester, 62 N.H. 347, 348, 350; Fowler v. Brooks, 64 N.H. 423, 424, 13 Atl. 417). If the execution of the power was wrongful or defective, it may be revised, corrected, or vacated, in a direct proceeding seasonably instituted for that purpose by any one having a rightful interest in the matter (State v. Kennedy, 65 N.H. 247, 23 Atl. 431); but, until this is done, the laying out is conclusive evidence of the duty of the town to repair the highway in a suit against it for damages incurred in consequence of the defective condition of the road (Horne v. Rochester, supra). The defendant insists that the record shows conclusively that the selectmen had no jurisdiction to lay out the way described in their return, because the petition asked for a road from one definite terminus to another, and the way laid out does not extend to the second terminus. It is claimed that the termini of the petition are definite bounds that determine with exactness the extent of the road the selectmen are authorized to lay out, and that a laying out that does not begin and end at the points arbitrarily established in the petition is absolutely void. That a petition in writing is necessary to give the selectmen jurisdiction can admit of no doubt (State v. Morse, 50 N.H. 9); and it is also true that a petition for one highway does not authorize them to lay out an entirely different one (Eames v. Northumberland, 44 N.H. 67, 69); but the question bene presented is whether the selectmen have the power to lay out a way over a part of the course prayed for, when the public good does not require the whole of it. Does it necessarily follow, from the record of such a judgment, that the petitioners asked for one highway and the selectmen laid out another? If such is the legal effect of the judgment, it is not protected against collateral attack, because the selectmen had no jurisdiction of the subject-matter which the judgment purports to determine. Fowler v. Brooks, 64 N.H. 423, 13 Atl. 417.

By the act of February 8, 1791, it was provided: "That at any time hereafter, when there shall be occasion for any new highways or private roads, to be laid out in any town or place in this state, the selectmen of such town or place, be, and hereby are empowered, on application made to them, if they see cause, to lay out the same, whether such highway or road be for the benefit of the town, or public in general, or for the benefit of the person or persons applying only." The act of July 3, 1829, re-enacted this statute, adding the words "in writing" after the words "made to them." Laws 1830, p. 573. Before that time the statute did not, in terms, require that the application for a new highway should be In writing; nor did it, in terms, make the jurisdiction of the selectmen depend upon the allegation in the verbal or written application of a fixed bound at each terminus of the proposed way. If the public good required the establishment of a more convenient means of communication between two places, the legislature furnished little direct evidence of a purpose to limit the jurisdiction of the selectmen in laying out the way by definite bounds, initial or final, arbitrarily established by interested parties. By the statute of 1791 two questions of a judicial character were submitted to the determination of the selectmen in case of an application for a public way: First. Is there occasion for a way for the public accommodation between the points indicated in the application? Second. If it is found that such occasion exists, by what route will the public good be best subserved? Having decided the first question in the affirmative, they were not required by the statute to decline to answer the second, whenever the public good would not be promoted by a road having the exact termini established by the petitioners. The laying out of the most feasible route between the two fixed bounds is not necessarily equivalent to the laying out of the best route for the accommodation of public travel between the same bounds. In the one case the test is arbitrary and unyielding; in the other it is governed by a reasonable public necessity. Unequivocal language in the statute would be necessary to overcome the natural presumption that the legislature intended to authorize the selectmen to employ the latter test in laying out a public highway. If the selectmen find that there is "occasion" for better means of communication between the points set out in the petition, there is no inconsistency in a judgment laying out so much of the proposed way as is necessary to fulfill the primary purpose of the application. Any other judgment would result in apparent injustice, which it is not to be presumed the legislature intended when it conferred jurisdiction upon selectmen to lay out highways "on application made to them, if they see cause." The same injustice would result by such a narrow construction of the statute as would occur if in assumpsit the plaintiff were turned out of court upon a verdict giving him less than his entire claim. Referring to a similar statute, the court say in Inhabitants of Princeton v. Worcester County Com'rs, 17 Pick. 154, 156: "But it is contended on the part of the present petitioners that the petition for a highway prayed for is one entire thing or subject-matter of judicial consideration and decision, and that it must be granted in whole or rejected in whole. As a general rule, supposing the question to stand on the general statute of 1786 (chapter 67, § 4) giving power to the court of general sessions, upon application made therefor, to lay out new highways * * * without any express limitation, the construction contended for would hardly seem to be analogous to the course of judicial proceeding, where usually, upon the maxim that the whole embraces all the parts, a prayer, claim, or demand for a larger sum or quantity is taken to be a prayer or claim for all the sums or parts of which it is composed, and under such claim the. party shall recover such part as he can establish title to. * * * Nor is there any case, that I am aware of, in which it has been held under the statute of 1786 the court of sessions could not lay out a part of the highway prayed for." In the revision of 1842 it was provided that "selectmen upon petition are authorized to lay out any new highway * * * within their town for which there shall be occasion, either for the accommodation of the public or the person applying." Rev. St. c. 49, § 1. This language, with slight and unimportant changes, was adopted in the Compiled Statutes (chapter 52, § 1), in the General Statutes (chapter 61, § 1), and in the General Laws (chapter 67, § 1), which were in force when the road in question was laid out.

In Fames v. Northumberland, 44 N.H. 67, 68. It is said: "The petition being the foundation of their [the selectmen's] 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 cannot act." It is not necessary, to controvert this proposition, to hold that the laying out of a part of the way prayed for may be authorized by the statute. The petitioners in effect ask for a new highway to accommodate public travel...