Joseph Dudley versus H. G. Cilley

delivered the opinion of the court. The question to be decided in this case, is, whether there is any legal consideration to sustain the promise contained in the note ? If there be such a consideration, the plaintiff is entitled to judgment on the verdict; but if otherwise, the verdict must be set aside, the promise being in law void.

In order to settle the question, whether there is a consideration, it becomes necessary to examine the powers and duties of the court of common pleas in laying out highways. It must often happen, that in exercising the power to lay out highways, courts take from men their property without their consent. But, as the constitution provides that “ no part of a man’s property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people,” it is very clear, that a man’s land can be taken for a highway, against his will, only on the occasions and in the manner by law prescribed.

It has been found convenient, for certain purposes, to divide highways also into classes. The first class embraces those, which are laid out for the particular accommodation of individuals; the second, town ways, and the third, highways leading from town to town. 3 N. H. Rep. 459. Highways of the two first classes may be laid out by the selectmen of towns, when there is “ an occasion for a new highway.” Highways of the third class, are to be laid out by the court of common pleas, “ when necessary.” And highways of the two first classes, may be laid out by the common pleas, when the selectmen of towns, neglect, or refuse to lay them out.

Under what circumstances a highway may be laid out to accommodate an individual, has not been settled. It is however, supposed, that a case of strong necessity alone can furnish a proper occasion for such a highway, and justify the taking of the land of one individual against his will, for the accommodation of another individual. It is not doubted, that there may be proper occasions for laying out such ways. The common law, under certain circumstances, gives a way of necessity. Com. Dig. Chimin, D, 4; 1 Saund. 323, note c.; 2 Mass. Rep. 203, Pernam v. Wead; 14 ditto, 49, Gayetty v. Bethune. What constitutes an occasion for laying out a highway for the accommodation of the public, is settled. In determining the question, when such an occasion exists, there are three things to be considered. 1st, The public exigency and convenience. 2d, The burthen that b lo be imposed opon the town or towns, where the road is to be laid oat, in making and keeping it in repair. 3d, The rights of individuals whose lands may be taken for the purpose. And the rule is, that when the public exigency is such, that it will justify the taking of the lands of individuals without their consent for the purpose, and will also justify the imposition of the burthen upon the town of making the road and keeping it in repair, then there is an occasion for a highway. When such-a case is shown, the rights of individuals must give way to the public conveniency and necessity, and the town must submit to receive the burthen.

This sound and reasonable rule is believed to be perfectly well established. 2 Pick. 547, Commonwealth v. Sawin; 8 ditto, 218. Parks v. Boston; 2 Johns. Ch. Rep. 162, Gardner v. Newburgh; 7 Mass. Rep. 166-167.

it has been decided in this court, that if selectmen lay out a road, not because the public necessity and convenience require it, but for other purposes which may be injurious to individuals, they may be liable to an action, and compelled to pay the damages. 2 N. H. Rep. 198, The Third Turnpike v. Chumpncp. And when selectmen do not proceed according to law, in laying out a highway, their doings are void. 3 Greenl. 438, Harlow v. Pike.

When it appears that a court has laid out a highway for any other cause than common convenience and necessity, the proceedings are irregular, and may be quashed. 2 Pick. 547, Commonwealth v. Sawin.

When a court has ordered a highway to be laid out, the law prescribes the mode in which the damages to individuals, by reason of the way, shall be paid,: and no court has the power to change the law on this subject. The power to lay out roads is given by statute, and any order not warranted by the statute, is void. Cowper, 640, Cripps v. Durden; 3 N. H. Rep. 268—269; I Starkie’s Ev. 252. In this case, upon a petition to the court to lay out a highway in a town, for the public accommodation, it was adjudged, that the public good required the road to be laid out. We must presume that in making this adjudication, the court paid no regard to the circumstance, that a part of the expenses of the road was to be paid by the petitioners, because it would have been highly improper, if they had so done. If the public convenience and necessity did not justify the decision, nothing could justify it. Everyone knows that great numbers of people often feel themselves deeply interested in petitions for roads, and that such petitions are frequently prosecuted by a multitude with great warmth on the one side, and are opposed by a multitude with equal warmth on the other side. Now, if in such cases, the petitioners can obtain a decision in their favor, not because the public good requires it, but because they are willing, in order to gain a victory over their opponents, or to promote their own private interests, to asssume some part of the expense, then may the owners of the land be made to submit to the encumbrance, and towns be made to bear the burthen of the way, not for the sake of the public, but to gratify the pride of victory, or promote the private interests of their opponents, which is nothing more nor less, than gross oppression.

In many cases, the laying out of a highway imposes a heavy burthen upon a town, and charitable donations, made after the way is laid out, to relieve*a burthen imposed for the public benefit, may be very proper. But offers of donations made while the petition is pending, are, if there were no other objection, of too suspicions a character to deserve to have any influence upon the decision. Nor has any court authority to make such donations the condition upon which a road is to be laid out. Evidence to show what may be the probable expense to the town, what the inconvenience to individuals, and what the advantage to the public, is relevant and proper, and upon such evidence alone should the question be decided.

The condition imposed by the court, in this case, on the laying out of the highway, not being warranted by law, was void; and this note having no other consideration to sustain it than that condition, is also void.