Bryant v. Town of Tamworth

• Decision Date: 31 July 1896
• Citation: 39 A. 431,68 N.H. 483
• Parties: BRYANT et al. v. TOWN OF TAMWORTH.
• Court: New Hampshire Supreme Court

39 A. 431

68 N.H. 483

BRYANT et al.

v. TOWN OF TAMWORTH.

Supreme Court of New Hampshire. Carroll.

July 31, 1896.

Exceptions from Carroll county.

Petition by Edward E. Bryant and others to the county commissioners for the removal of gates and bars across a highway in Tamworth, laid out by the selectmen, subject to gates, June 5, 1852. The petition alleges that the gates and bars have become unnecessary and inexpedient, and that the selectmen, upon petition to remove the gates, have refused to remove them, and requests the commissioners to lay out the road as an open highway. Upon due notice and hearing, the commissioners reported that they are of the opinion that there is no occasion to remove the gates, and that the prayer of the petition should not be granted. The plaintiffs introduced a copy of the record of the laying out, in 1852, and claimed that it was illegal as to the laying out of the highway subject to gates, and that the commissioners should order them removed. The court ordered judgment on the report of the commissioners, and the plaintiffs excepted. Exceptions overruled.

J. H. Hobbs, for plaintiffs.

S. W. Abbott, for defendant.

BLODGETT, J. The plaintiffs have no case. If the laying out of the highway in 1852, subject to gates, was legal, no error appears in the finding of the commissioners that there is no occasion to remove the gates: and, if the laying out was illegal, the finding is in no wise affected, because the highway long since became a legal one by user. Pub. St. c. 67, § 1. But, suppose it did not, the plaintiffs stand no better; for if it be assumed, in accordance with their contention, that the imposition of the gates was illegal, and that their maintenance has since been and now is an unlawful obstruction to the travel on the highway, their remedy is by indictment. Pub. St. c. 77, § 8. Then, again, it is beyond doubt or disputation that the laying of the highway by the selectmen, in the exercise of a judicial power conferred on them by the statute of highways, cannot be impeached or set aside in this collateral proceeding. Spaulding v. Groton, 67 N. H. —, 40 Atl. —,¹ and authorities cited. Exceptions overruled.

CLARK, J., did not sit The others concurred.

1 Opinion not yet filed.