Gilbert v. Manchester

• Decision Date: 13 March 1875
• Citation: 55 N.H. 298
• Parties: Gilbert v. Manchester.
• Court: New Hampshire Supreme Court

55 N.H. 298

Gilbert v. Manchester.

Supreme Court of New Hampshire

March 13, 1875

Where the evidence tended to show that the city of Manchester had made a contract with the Amoskeag Manufacturing Company, a corporation, by which said corporation were bound to keep a certain street in good repair and permit the public to use it, and that the city, during a continuous period of nearly thirty years, had held out said street as suitable for the accommodation of the public, and that the plaintiff, relying upon such holding out, had used the street as a highway and sustained damage by reason of its defective and insufficient condition---Held, that the city were estopped to deny that said street was a highway, for defects and insufficiencies in which they were liable, as in the case of other highways under the statute (ch. 69, Gen. Stats.)

CASE for defect in highway. The alleged defect was in Canal street (which runs north and south), between the carriage path and the east sidewalk, at a point nearly in a line with the south side of Middle street, which makes a junction with the east side of Canal street at a right angle. The question whether Canal street is a highway seemed so serious that the court restricted the trial to that question, for the purpose of first settling the law involved in it. Canal street was never laid out by public authority; and the question is, whether it is a highway by prescription. It had been used as a road by everybody that had occasion to use it, for more than twenty years before the date of the alleged defect,---and used during that time as much or more than any other street in Manchester except Elm street. The plaintiff claimed that the use was adverse; the defendants, that it was permissive. The street was laid out and built by the Amoskeag Manufacturing Company on their own land, and has been repaired by the company and not by the town. By deed, dated January 29, 1841 the company conveyed to the town of Manchester nineteen and seven tenths acres of land for a cemetery, to have and to hold for the term of two years, with a proviso that if the town should within the two years cause certain roads to be duly and legally discontinued, if they or either of them were public highways, the town should thenceforth hold the premises in fee-simple forever for a cemetery. By a deed of the same date the company conveyed to the town ten thousand feet of land on Elm street for a town-house lot, with a similar proviso. By a deed of the same date, from the company to the town, the company "granted, convenated, and agreed" "to and with said town," that in case the town should cause the roads described in the deeds to be discontinued within two years, the town should "thenceforth have, and the company grant to said town from that time forward, for all the inhabitants of said town and for all other persons having occasion to pass the same full right to pass and repass at all times, with all manner of cattle and carriages, over and upon a fifty foot street now laid out by said company, known by the name of Canal street, and over those parts of the streets known by the names of Stark street and Mechanic street which are on land owned by said company, and over and upon all such streets as are now or shall be hereafter laid out by said company in said town of Manchester west of Elm street and east of said company's canal, without expense, and without any hindrance or obstruction by said company. And said company further agree, that as soon as said roads shall be discontinued, they will make, and put in order for public travel, a new street from Elm street to Canal street, between Bridge street and Mechanic street. And said company further agree that they will make, and put in order for travel, all the streets which they may lay out west of Elm street and east of their upper canal, as aforesaid, at their own expense, and that they will keep in repair all the streets now laid out or which may be hereafter laid out by said company west of said Elm street and east of their upper canal, as aforesaid, at their own expense. Provided, however, that if either of said streets

shall be laid out as public highways, all obligation on the part of said company to make or repair the same shall cease. And provided further, that nothing herein contained shall be construed in any way to interfere with the right of said company to use said streets for the purpose of building on the adjoining lots, or their right to alter said streets, or substitute others, or to change the grade of the same, or make any alteration therein not inconsistent with the public accommodation, at their pleasure."

At a town-meeting, February 1,1841, a committee, previously appointed to ascertain on what conditions a cemetery and town-house lot could be obtained, reported that they had applied to the company, and the company "proposed to deliver to the town the deeds presented herewith, upon the conditions stated therein, in case the town shall think proper to accept the same." The three deeds accompanied the report. The town voted, on motion of Mr. Bell, to accept the deed of a burying-ground offered by the company, upon the conditions expressed therein, and that all the roads described in said deed be discontinued, provided the court of common pleas shall consent thereto, if such consent is by law necessary, and that the selectmen be directed to procure such consent without delay; and voted to accept the other two deeds, and to discontinue the roads for the discontinuance of which the company stipulated. Said roads were legally discontinued within the two years, and all the agreements and stipulations of the three deeds were executed and carried into effect.

The defendants introduced two witnesses. E. A. Straw testified: I have been agent of the company nearly twenty years; have been in their employment since 1838; began to work for them in 1838 as civil engineer in laying out their land and works Canal street was built by them in connection with and alongside of their upper canal, and as part of their plan of operations; the northern end was built in 1839 and 1840, principally with the earth dug out in making the canal; at the point where Middle street now joins it, it was built about 1844 or 1846; there have been signs "Canal street, private-way" on the east side of the street, on the buildings at all or nearly all the corners; my impression is, they were put up in 1858; we built Canal and Middle and...