Bridgham v. Town of Effingham

• Decision Date: 17 September 1934
• Citation: 174 A. 769
• Parties: BRIDGHAM v. TOWN OF EFFINGHAM.
• Court: New Hampshire Supreme Court

174 A. 769

BRIDGHAM

v. TOWN OF EFFINGHAM.

Supreme Court of New Hampshire. Carroll.

Sept. 17, 1934.

Transferred from Superior Court, Carroll County; Sawyer, Judge.

Case by George D. Bridgham against the Town of Effingham. Transferred on defendant's exceptions to the denial of its motion for a directed verdict, evidence, and in connection with the charge.

New trial.

Case, upon the statute (P. L. c. 89, § 1), for damage to the plaintiff while a highway traveler and claimed to be caused by a defective embankment. In a jury trial he received a verdict. The defendant excepted to the denial of its motion for a directed verdict, evidence, and in connection with the charge. The facts sufficiently appear in the opinion.

Demond, Woodworth, Sulloway & Rogers, of Concord (Franklin Hollis, of Concord, orally), for plaintiff.

Conrad E. Snow and Leonard O. Hardwick, both of Rochester, for defendant.

ALLEN, Justice.

The motion for a directed verdict specified three grounds. One was that the road at the place of the accident had been placed under state aid.

In the preliminary litigation between the parties upon the issue of the plaintiff's right to file his claim it was held, in Bridgham v. Effingham, 86 N. H. 332, 168 A. 904, that the requirements for a state-aid character of the road at the place of the accident were not shown. The present inquiry is whether proof of essentials then lacking has been supplied.

As then appeared, sections of the road were under state aid, but no joint-fund money had been expended to improve a part which took in the place of the accident. The aid was furnished in two successive years. For the second year the selectmen notified the state highway commissioner of their selection of the road to be improved, using a blank form for the purpose. Filled out, it read in part as follows: "The * * * Selectmen of * * * Effingham desire that the Joint Fund money available in the year 1931 * * * be expended upon the following described road: Name of Road being the main road from Effingham Falls to South Effingham. How is this location situated with reference to that of previous year? Continuation, and we respectfully ask your concurrence in the above selection." The commissioner approved the location.

Whether this location designated the entire road or the part of it which the fund might be sufficient to improve, is to be determined in the light of the legislation, its policy, and the factual situation. A town's exemption from liability being given in the view that liability should be for some breach of duty, relief from the duty is the broad test of the existence of the exemption. State control means such relief. "The underlying thought * * * is that the statutory immunity is given because control has been taken from the town, either in whole or in part." Bridgham v. Effingham, 86 N. H. 336, 168 A. 904, 906, supra.

State control follows the use of state money. Until such use local control continues. The legislation gives no authority to the commissioner in the maintenance of highways not constructed or repaired with some use of state funds. The policy is that not until state aid has been furnished is the state interested in maintenance. The commissioner has no oversight except where the state has aided.

Upon an appropriation, entitling a town to state aid an agreement between the selectmen and commissioner for the joint fund to be expended upon a designated highway can be effective only for the section of highway which is to receive the benefit of the fund. It may be for a definite stretch of highway agreed upon in advance of the expenditure to be made upon it or it may be indefinitely for such distance on the highway selected as may be improved with the fund. Here there is a highway intended ultimately to receive state aid for its entire length but with annual appropriations each of which is insufficient to improve more than a part of the length. The plan that the road from one end to the other shall become state-aided does not amount to a designation in a legal sense, even if it has the commissioner's approval. Appropriation is a condition precedent to the validity of approval, and approval may not be beyond a fair estimate of the part of the highway which the fund on hand will be large enough to improve. "State aid is an annual affair. * * * What will be done in future years depends upon future action by the town. Until that action has been taken, the selectmen have no power as to future designation of highways to be improved, and their intention in relation thereto is immaterial upon the issue of the status of a road." Bridgham v. Effingham, 86 N. H. 335, 168 A. 904, 905, supra.

The reasonable construction of the commissioner's approval is that state control was to extend according to the part of the road which would be placed under improvement from the joint fund. Otherwise there might be a situation of such control for a part of the road which for lack of future town appropriations might never become state-aided in fact. An outcome of that nature is not within the legislative contemplation. State control arising as a statutory consequence of improvement from a joint fund, until the improvement is begun the town's liability to travelers continues. The exemption as to state-aided roads is only applicable to those "constructed or repaired in whole or in part by the state or by state aid" from the time construction or repairs commence. Laws 1931, c. 122. Exemption from liability proceeds for the whole or a part of a highway according as it is thus wholly or partly improved.

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