Underwood v. Bailey

Decision Date13 August 1855
Citation56 N.H. 187
PartiesUnderwood v. Bailey.
CourtNew Hampshire Supreme Court

Highway---Appeal---Laying out, when invalid---Waiver.

Where a condition is affixed to the laying out of a highway for the accommodation of a person applying therefor, any land-owner or other person aggrieved and appealing from such laying out may take advantage of the illegality resulting from the imposition of such condition, notwithstanding the individual for whose benefit the highway was laid out is willing to assent to such imposition.

In such a case, the party aggrieved will not be regarded as having waived his objections, by a neglect to give notice of or specify them at the first term of court to which the report of the commissioners upon his appeal was returned

From COÖS Circuit Court

APPEAL from the laying out of a highway by the selectmen of Lancaster, and the award of land damages by them thereupon made to the plaintiff. At the April term, 1873, the appeal was referred to the

county commissionors, who, at the November term, 1873, made a report, in which they "affirm the decision of said selectmen, both in the laying out and the award of damages." At said November term, 1873, the plaintiff filed the following objections, in writing, to said report (1) The road attempted to be laid out and established by said commissioners is only a personal or private interest, solely for the benefit of the petitioner, and not for the public good; (2) that the damages awarded were insufficient;---and at the same term signified his intention to try the cause by jury. At the April term, 1874, the cause was set down for trial by jury, and, after a jury had been impanelled to try the same, the plaintiff's counsel, in opening his case states a further objection to the report, namely, that the highway was laid out by the selectmen, subject to the conditions that the same was "to remain a highway so long as said petitioner shall keep the same in repair, and no longer. Said petitioner shall cover over and so protect the well within the limits of the above described road, that said Brown (one of the land-owners) may draw water therefrom outside of said road, if he chooses so to do." The defendant contended that this objection came too late; that it ought to have been taken at the first term when the report came in. By pro forma rulings the objection was admitted and overruled, and both parties exccpted. The laying out by the selectmen was on October 9, 1871, and contained the conditions above quoted. The report of the commissioners so far as regards this question, is fully given above; it simply shows that they affirmed the decision of the selectmen. The damages awarded to the plaintiff by both selectmen and commissioners was $15. At the trial the plaintiff insisted on his written objections before filed, and especially on the fact that the road was laid out for the private accommodation of the defendant, being, in effect, a taking of private property for a strictly private use. The original petition to the selectmen is signed by the defendant alone, and represents that the way prayed for is for his individual accommodation. The selectmen, in their laying out, say that they "are of the opinion that there is occasion for a new highway, on the route described in said petition, for the benefit of said Walter S. Bailey;" and the commissioners, in their report, say,---"We are of opinion that, for the accommodation of said appellee, there is occasion for the same." At the trial, it appeared that the way laid out begins on the southerly side of an open passage-way, leading from the west side of Main street, between the building used and occupied by the defendant for a store and dwelling-house and the store of R. P. Kent & Son, the south-easterly margin of the way crossing exactly to the north-west corner of the defendant's building, and from thence extending southwesterly some thirty-five feet to another piece of land of the defendant, on which stands his barn, making no other connection with any highway. The benefit to the defendant from the laying out manifestly was, that it furnished him means of access to his barn, which, he testified, he used for keeping two horses and some hens for his private use. Said highway was laid out eleven feet in width, and not subject to gates

or bars. All objections of the plaintiff to the report were pro forma overruled, and the jury assessed the plaintiff's damages at $28.25. Thereupon the defendant moved for judgment on the report, substituting the finding of the jury as to damages for the award of the commissioners. The plaintiff moved that the report be set aside for the reasons above indicated, and the questions arising on said motions were reserved.

J. Benton and Geo. A. Bingham, for the plaintiff. Ray and Drew & Heywood, for the defendant

FOSTER, C. J., C. C.[*] By express provision of law, selectmen are authorized "to lay out any new highway * * * for which there shall be occasion, either for the accommodation of the public or of the person applying;" and if it be for the accommodation of an individual, it may be laid out subject to gates and bars, to be maintained by the person thus accommodated, his heirs or assigns; "but no other condition shall be affixed to the said laying out, or imposed upon the individual for whose benefit the lying out was made." Gen. Stats., ch. 61, secs. 1,12. The report of the selectmen as well as that of the commissioners declares that the highway in question was laid out for the accommodation of the original petitioner, not subject to gates or bars, but upon this condition among others, that the same should "remain a highway so long as said petitioner shall keep the same in repair, and no longer."

These conditions are not precedent, but subsequent. Still, they are not so far independent of the laying out of the highway as that they...

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5 cases
  • Shearer v. Raymond
    • United States
    • New Hampshire Supreme Court
    • January 13, 2021
    ...long authorized municipalities to take land from a private landowner for the purpose of laying out a public highway, see Underwood v. Bailey, 56 N.H. 187, 189 (1855), provided that compensation is given to the landowner for the taking, see Hampton v. Coffin, 4 N.H. 517, 518 (1829) ; State v......
  • Cram v. City of Laconia
    • United States
    • New Hampshire Supreme Court
    • September 6, 1901
    ...Jewett & Plummer, for defendants. REMICK, J. Highways are established, altered, and discontinued for the public good. Underwood v. Bailey, 56 N. H. 187; Id., 59 N. H. 480. It must be presumed that the public good required the discontinuance in question. Smith v. City of Boston, 7 Cush. 254,......
  • Gaines v. Linn County
    • United States
    • Oregon Supreme Court
    • December 14, 1891
    ... ... 490, is to the same effect. And ... the same principle is, in effect, held in Fleming v ... Hight, 95 Ind. 78; Underwood v. Bailey, 56 N.H ... 187; Ross v. Commissioners, 32 Mich. 301 ... Upon ... the argument here something was said by ... ...
  • Bickford v. Town of Franconia
    • United States
    • New Hampshire Supreme Court
    • February 7, 1905
    ...228, 9 Atl. 100; Campbell v. Windham, 63 N. H. 465, 3 Atl. 422; Peirce v. Portsmouth, 58 N. H. 311; Underwood v. Bailey, 58 N. H. 59; Id., 56 N. H. 187. It is a general rule that objections to the competency of a tribunal having general jurisdiction of the subject-matter may be waived. Gilm......
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