Williams v. Babcock

• Decision Date: 16 March 1981
• Docket Number: No. 80-041,80-041
• Citation: 428 A.2d 108,121 N.H. 185
• Parties: Thurston V. WILLIAMS v. Elizabeth T. BABCOCK.
• Court: New Hampshire Supreme Court

Page 108

428 A.2d 108

121 N.H. 185

Thurston V. WILLIAMS v. Elizabeth T. BABCOCK.

No. 80-041.

Supreme Court of New Hampshire.

March 16, 1981.

McLane, Graf, Raulerson & Middleton, Manchester (Robert A. Wells, Manchester, orally), for plaintiff.

Goodnow, Arwe, Ayer, Prigge & Gardner, Keene, and Upton, Sanders & Smith, Concord (Richard F. Upton, Concord, orally), for defendant.

PER CURIAM.

This is an appeal by the plaintiff, and a cross-appeal by the defendant, from a hearing and decision by a Master, (Arthur H. Nighswander, Esq.), approved by Contas, J. The hearing was held after this court had remanded in a prior appeal taken by the plaintiff. See Williams v. Babcock, 116 N.H. 819, 368 A.2d 1166 (1976).

In the first appeal (Williams I) the plaintiff had filed a petition for declaratory judgment and injunctive relief in which he claimed certain rights in a road running through and past the land of the defendant in the town of Stoddard. The road in question, Carter Hill Road, is described in Williams v. Babcock, supra at 820, 368 A.2d at 1168 as follows:

"Carter Hill Road, runs northeasterly from Shedd Hill Road, a public highway in Stoddard in Cheshire County, for about two miles through land owned by the defendant to a point near Trout Pond. It there intersects with South Road which leads easterly through defendant's land to the town of Windsor. Carter Hill continues northeasterly partially through defendant's land and partially on the boundary between land of plaintiff and that of the defendant to its intersection with North Road which also leads easterly through defendant's land to the town of Windsor. Carter Hill Road itself continues northeasterly and leads to the town of Washington in Sullivan County. That portion of the road running to Trout Pond is presently well maintained by defendant but North Road, South Road and the rest of Carter Hill Road are no more than woods roads, probably passable only by off-road vehicles and on foot."

(See unofficial sketch attached to this opinion merely to facilitate following this description).

In support of his petition the plaintiff introduced evidence to support the following positions: (1) Carter Hill Road was established by prescription prior to its layout by the town of Stoddard in 1827; (2) a vote of that town to discontinue the road in March 1869, was ineffective because judicial consent was not acquired as mandated by G.S.1867 c. 65; (3) even if that town vote had complied with that statute, the vote did not extinguish the rights of the public to use the road since these rights were established by prescription prior to the town's formal layout of the road in 1827; (4) regardless of the effect of any action taken by the town in March 1869, Carter Hill Road was established by prescription as a public way after 1869 through twenty years of uninterrupted and continuous use of the road by the public under a claim of right.

The defendant filed three motions to dismiss plaintiff's above petition, one of which was on the ground that the plaintiff had an adequate remedy at law under RSA 234:18-a. This latter motion was granted by the trial court subject to plaintiff's exception, which was transferred to this court. We ruled that the dismissal was improper. Williams v. Babcock, 116 N.H. 819, 821, 368 A.2d 1166, 1168-69 (1970).

While the first appeal (Williams I) was pending in this court, the plaintiff filed a motion for a new trial in the superior court on the ground that he had discovered certain evidence which he believed would cause the trial court to reverse its earlier decision. See RSA 526:1-:3. In view thereof, and for the other reasons set forth in Williams v. Babcock, supra, we remanded the case to the superior court in the following language:

"Accordingly, the decision to dismiss plaintiff's petition because of an adequate remedy at law under RSA 234:18 is reversed and the case is remanded so that the master may receive the new evidence and decide the question whether the road existed by prescription before the 1827 layout."

Williams v. Babcock, 116 N.H. 819, 824, 368 A.2d 1166, 1171 (1976). The hearing on remand (Williams II), was held before a Master (Arthur H. Nighswander, Esq.) who ruled that the issue before him was limited to the question "whether the road existed by prescription before the 1827 layout." See id. At that hearing, the plaintiff submitted his newly discovered evidence, which was wholly documentary. One of the documents was a copy of Laws 1803, Chapter 53, requiring each locality within the State to conduct an accurate survey and transmit a resulting map to the secretary of state. Also submitted were an ancient plan of the town of Stoddard; a copy of the charter of Stoddard in 1752; and parts of a history of that town from its incorporation in 1774 to 1974 when the history was published.

The defendant, in rebuttal, introduced a newly discovered 1788 layout of the town of Stoddard, which showed the position of the road in question, plus two other exhibits, a 1913 map, and a history of Stoddard, which had also been introduced as exhibits in the first trial. Certain deeds introduced as exhibits in the first trial were also used to establish certain locations on the ground.

The master could properly rule and find on the record that the above 1788 layout was admissible, Webster v. Boscawen, 67 N.H. 111, 29 A. 670 (1891), and constituted proof that a highway was lawfully laid out by the town of Stoddard on November 12, 1788. On the evidence presented, the master could properly find, rule and recommend, as he did, that this 1788 layout began at the Windsor-Stoddard line and extended to what is probably the present Shedd Hill Road. The master disposed of the plaintiff's most important factual claim when he ruled that the section of Carter Hill Road extending from Shedd Hill Road northeasterly to Trout Pond (which section is the focus of plaintiff's claim) existed before the 1827 layout by virtue of the 1788 layout rather than by prescription. In so ruling, he stated: "The evidence of travel after 1788, the evidence that the road serviced several owners as shown by cellar holes and references to owners or persons living on the road, and the evidence of a school house near Trout Pond is all consistent with its being a public road after 1788. The master recommends that it be decreed that the road from Shedd Hill Road in Stoddard to the Town Line of Windsor as laid out by the Selectmen in 1788 ... and in 1827 ... was a public highway unless discontinued."

The master next considered the effect of the vote of the town of Stoddard in March 1869, to discontinue this road. He adverted to G.S.1867 65:1-:2 which read as follows:

"Section 1. Highways in a town may be discontinued by vote of the town; if they extend beyond the limits of the town, they may be discontinued upon petition to the supreme court, and like proceedings thereon as in laying out highways.

Section 2. If the highway was not laid out by the selectmen ... the highway shall not be discontinued without the consent of said court."

The master, in his report, found and ruled in part that: "The road in question extended beyond the limits of the Town of Stoddard and discontinuance might very well affect access to property in an adjoining town or towns. To require that a petition be filed with the Court under those circumstances does not appear to be unreasonable .... (T)he only case in point is Drew v. Cotton, 68 N.H. 22, 42 A. 239 (1894).... In the Drew case the Court (Doe, J.) in effect ignored the fact that the highway in question extended into Maine and into another town, stating that it was a highway 'wholly within a town'...." Following Drew v. Cotton supra, the master applied the law of that case when he ruled that the vote of the town in 1869 to discontinue the road was legal. The master then suggested that the reasoning of that case was suspect but that he was bound to follow it. It is agreed that no court approval was sought or obtained by the town for the March 1869 discontinuance. The defendant filed a cross-appeal transferring its exception to the recommendation of the master that this court consider overruling Drew v. Cotton.

The plaintiff maintains that an analysis of the General Statutes of 1867 shows that the legislature did not give to individual towns the power to alter or lay out roads extending into two or more towns. It must follow plaintiff argued, that if the legislature did not give to individual towns the power to alter or lay out multi-town roads, it did not give them the power to discontinue such roads, and Drew v. Cotton, 68 N.H. 22, 42 A. 239 (1894) must therefore be in error.

In further support of his position, the plaintiff maintains that the Drew interpretation of the statute in question (G.L.1879, 71:1, successor to G.S.1867, 65:1) violates recognized principles of statutory construction. They are the following: (1) the intent of a statute is determined from its construction as a whole and not by separately construing isolated words or phrases, Hancock v. Concord, 114 N.H. 404, 406, 322 A.2d 605, 606 (1974); (2) it is to be presumed that the legislature would not enact legislation which nullifies to an appreciable extent the purpose of a statute, Kalloch v. Board of Trustees, 116 N.H. 443, 445, 362 A.2d 201, 203 (1976); and (3) statutes in pari materia should be read as a part of a unified cohesive whole. State Employees Ass'n. v. N.H. PELRB, 118 N.H. 885, 890, 397 A.2d 1035, 1038 (1978), 2A Sutherland on Statutory Construction § 51.03 (1972).

When this road was laid out in 1788, the governing statute was the act of February 27, 1786. 5 Laws of N.H. 116. It provided in part as follows:

"(T)hat at any time hereafter when there shall be occasion for any new highways or private roads to be laid out in any town or parish within this State the selectmen of such town or parish shall be and hereby are empowered upon petition to them exhibited if...