State v. Scott

• Decision Date: 02 March 1926
• Parties: STATE v. SCOTT.
• Court: New Hampshire Supreme Court

132 A. 685

STATE

v. SCOTT.

Supreme Court of New Hampshire. Hillsborough.

March 2, 1926.

Transferred from Superior Court, Hills borough County; Branch, Judge.

Information by the State against William L. Scott charging a violation of a statute, and praying for an injunction. On question transferred without a ruling. Question decided, and case discharged.

Information, with prayer for an injunction, filed by the county solicitor, charging the defendant with maintaining a certain structure known as a gas arm, contrary to the provisions of P. S. c. 77, § 8, and amendments thereto (P. L. c. 92, § 8), and in violation of the laws and ordinances of the city of Manchester.

According to the agreed facts the defendant is the owner of a filling station, so-called, located on Elm street, which is a legal highway. For the purpose of furnishing gasoline to his customers he has erected on his own property a device made of iron piping with hose attached through which gasoline can be pumped. This device when in use is swung out over the sidewalk and the hose inserted in the gasoline tank of the customer's car. When not in use it occupies a stationary position at the side of the pump, which is located on the defendant's land.

The question whether on these facts the defendant can be found guilty of a violation of the statute and ordinances was transferred by Branch, C. J., without a ruling.

George I. Haselton, Sol., of Manchester, for the State.

Warren, Howe & Wilson, of Manchester (Charles B. McLaughlin, of Manchester, orally), for defendant.

MARBLE, J. By the terms of the statute any structure which is erected or continued upon or over any highway is deemed a public nuisance. The word "highway" comprehends every public thoroughfare, whether road or sidewalk (Hall v. Manchester, 40 N. H. 410, 415), with its soil and all the space above it (State v. Kean, 45 A. 256, 69 N. H. 122, 48 L. R. A. 102; Woodsville Fire District v. Stahl, 119 A. 123, 80 N. H. 502, 504, 27 A. L. R. 1144; Exeter v. Meras, 114 A. 24, 80 N. H. 132).

The object of the statute is the preservation of the public right. State v. Kean, supra. It forbids incumbrances and encroachments, but does not attempt to regulate viatic or vehicular use as such. No facts are stated from which it can be found that the gas arm in and of itself actually hinders or obstructs public travel. Unless it does, it is not an incumbrance. Id. 126 (45 A. 256). Is it then, an encroachment? To encroach is to intrude unlawfully upon the right or possession of another.

A structure is none the less an encroachment because its intrusion is recurrent. Awnings do not encroach on "the limits reserved for public use" uninterruptedly, and yet the Legislature understood that they were within the statute. Id. 128 (45 A. 256). While the gas arm in the present case resembles an awning so far as intermittency of use is concerned, the resemblance ceases at that point. The person who erects an awning over a sidewalk is not using the public way for any purpose for which highways are established. This is not true of the defendant's use. His gas arm is a vehicle for the transportation of gasoline.

The public easement includes all reasonable modes of travel and transportation which are not incompatible with the proper use of the highway by others. Graves v. Shattuck, 35 N. H. 257, 265, 69 Am. Dec. 536. It is not restricted to the transportation of persons or property in movable vehicles (Cater v. Telephone Exchange Co., 63 N. W.111, 60 Minn. 539, 544, 28 L. R. A. 310, 51 Am. St Rep. 543), but extends to every new method of conveyance which is within the general purpose for which high ways are designed. Hendry v. North Hampton, 56 A. 922, 72 N. H. 351, 356, 64 L. R. A. 70, 101 Am. St. Rep. 681; Richmond v. Bethlehem, 104 A. 773, 79 N. H. 78, 81.

This does not mean, however, that the public right may be exercised without restraint. The Legislature may limit and control it (State v. Aldrich, 47 A. 602, 70 N. H. 391, 85 Am. St. Rep. 631; Opinion of the Justices, 129 A. 117, 81 N. H. 566, 39 A. L. R. 1023), and authorize city councils to pass any ordinance in respect thereto which is not repugnant to the Constitution and laws of the state (Sherburne v. Portsmouth, 58 A. 38, 72 N. H. 539, 542; State v. Angelo, 51 A. 905, 71 N. H. 224, 228; State v. Hayes, 61 N. H. 264, 332; State v. Noyes, 30 N. H. 279, 293).

Extensive powers in this regard have been conferred upon the city of Manchester. But in exercising these powers...