State v. Morse

H. Hibbard, for defendant.

It was ordered, that this case be reserved to the next law term for the consideration of the whole Court.

“ A.”

HIGHWAY Ho. 5.

Hanover, Eeb’y 14th, 1795.

Gen. Ebenezer & Joseph Curtis two of the selectmen of said Hanover laid out a road or highway from the rope ferry so called to the north west corner of the college green laying the following line for the middle of said highway viz beginning at high water-mark where the road now is thence running north seventy five degrees east seven rods then south forty degrees east nineteen rods — thence south twelve degrees east nineteen rods — thence south twenty five degrees west twenty eight rods — thence south thirty seven-degrees west, forty rods — thence south twenty five degrees west twenty two rods — thence south four degrees east thirty seven rods, to the northerly line of the second hundred acre lot belonging to the original right of Noah Jones at the northwesterly boundary of land belonging to the wife of Bezaleel Woodward Esq’r., thence south forty degrees west one hundred and ninety rods on the westerly line of land belonging to said Woodwards wife— thence south by a meridian line as the road now lies fifty two rods to the northwest part of the college green, the highway to be four rods wide on the last line & three rods wide on the other lines — surveyed by B. Woodward.

Ho. 6.

We also at the same time laid out a highway from the highway at the front of Deacon John Paines house westerly to said rope ferry road the distance from road to road being about twenty two rods the northerly line of said road being the southerly line of Deacon Benoni Dewey’s house lot and the southerly line of a lot conveyed by Bezaleel Woodward to Josiah Dunham said road to be three rods wide.

Surveyed by B. Woodward.

There is no compensation to be given for the above last mentioned road as pr. agreement.

Samuel Slade, Joseph Curtis, j-Selectmen.

A true copy, from the records in the office of the town clerk of Hanover, Attest, O. S. Ingalls, town clerk of Hanover.

Prom C. A, Dole, Clerk.

Carpenter, for the State.

I. Upon the facts stated in the case, it would be the duty of a jury to find the highway in question duly and legally laid out. Pritchard v. Atkinson, 8 N. H. 388-9; State v. Alstead, 18 N. H. 59; Robbins v. Bridgewater, 6 N. H. 527; Hayward v. Bath, 88 N. H. 179.

II. The case discloses no evidence upon which it would be competent for a jury to find that any part of the highway southerly of the cross fence has been abandoned or discontinued, however it may be with the part northerly of said fence. State v. Alstead, 18 N. H. 60; Webber v. Chapman, 42 N. H. 826.

H. Hibbard, for respondent.

There having been no petition for the road in question, nor oath taken by the selectmen, nor notice to the town, nor finding that the road was required for the public accommodation, nor any compensation for the land damages, the laying out was illegal. The record is no evidence of a valid laying out, but the contrary. Statute of 1791, “ for laying out highways Pritchard v. Atkinson, 3 N. H. 335; Wig-gin v. Bxeter, 13 N. H. 304; Haywood v. Charlestown, 34 N. H. 23; Commonwealth v. Coombs, 2 Mass. 489; Commonwealth v. Cummings, 2 Mass. 171; Lancaster v. Pope, 1 Mass. 86; Commonwealth v. Egremont, 6 Mass. 491; Commonwealth v. Swain, 6 Pick. 547.' The proceeding is irregular and invalid in this also, that it appears by the return that the road was laid out by Ebenezer Brewster and Joseph Curtis, two of the selectmen, while the return is signed by Samuel Slade and Joseph Curtis as selectmen, and not by Ebenezer Brewster. The defects here appearing do not come within the principle of any of the cases where deficiencies have been supplied by presumptions arising from lapse of time. They are of such a nature as to be incompatible with the original existence of a correct laying out. The result is that there can be no road in any part of the route unless by prescription; and there is no evidence which shows or tends to show a highway at the place of the alleged obstruction. On the contrary, the case does show an abandonment of the part of the road northerly of the junction of this with the cross road, including the place in controversy. State v. Alstead, 18 N. H. 59. If there is any road here, it having been created solely by long continued use, the easement is only of so much as the public has actually used. It can cover only the travelled part of the way, and the space needed for the proper enjoyment of that part. In this case, the alleged obstruction (the dooryard fence) is about ten feet from the travelled track at the nearest point, averaging a distance of about thirteen feet. It does not obstruct at all the travelled track, nor the travel. It is not the law that a road by prescription covers all the space between the fences on the two sides of the travelled track, if there are such fences. Harlow v. Humiston, 6 Cow. 189. Such a claim would have no definiteness or limit. There has been no fence anywhere on one side of the track which had stood twenty years before the indictment. The space between the track and the fence cannot be covered by the easement on one side of the road, while on the opposite side it is not so covered.

The first question is, whether at the point in question a legal highway is shown to have been established.

The State offers the record of the laying out of such highway by a majority of the selectmen, February 4th, 1795, but produces no record or other direct evidence of an application for such highway. Without such application, it is well settled that the selectmen have no jurisdiction to lay out a road. Pritchard v. Atkinson, 3 N. H. 335; Haywood v. Charlestown, 34 N. H. 23; Clement v. Burns, 43 N. H. 613.

But it is urged for the State that it is competent for the jury, after this lapse of time and upon the evidence of user, to presume that the highway was duly and legally laid out. The laying out was February 14, 1795, and had the road been used ever since as a public highway, it would have been competent for the jury to presume that all the proceedings were regular and valid. And so it would have been had the user continued twenty years. From the case it appears that at the time of the laying out, and for several years after the building of a bridge across the Connecticut river, the highway was much used as a public road between the villages of Hanover and Norwich and Thetfbrd, Vermont, it being the rope ferry road, so called, connecting the college plain with the rope ferry, then in use across the said river. From the southerly terminus at the college plain to a point where it is joined at right angles by a cross street about forty rods distant, this road has always been used and kept in repair as a public highway. From this point at cross street to rope ferry, the northern terminus, the road has been very little used since the building of the bridge in 1796 and the removal of the ferry boat; and in 1811 the land owners erected a fence across the road, about one mile from the southerly terminus, and about three fourths of a mile from the northerly terminus, rope ferry, to save the expense of fencing the road, and to prevent travellers going upon that part of the road under the impression that it was the road to Lyme, and said fence and bars have ever since been kept up; and since its erection the road beyond has been used only by occasional foot passengers going to and from rope ferry, and by persons and teams passing to and from the fields northerly of the fence for farming purposes; nor has it been graded or repaired or fenced, and the way is a foot-path, and varying and uncertain as to its locality, and in places diverging from the limits of the original laying out.

Between the cross fence and the cross street, a distance of nearly one mile, are now seven dwelling-houses, including the defendant’s, erected at different times, most, but not all, within twenty years next before the indictment, and between cross street and the southerly terminus there are seven or eight dwellings, an academy building, and vestry, some erected fifty years ago, and most of them more than thirty years since. To all these buildings on both parts of the road there has been no access but by the road in question. The land on this road, between the cross street and the bars, has been owned by a number of persons in separate lots, and they have always maintained fences on each side of the road, and have used the road for driving cattle to pasture, for carting agricultural products and manure &c., and for other purposes for which they have had occasion.

The obstruction complained of is a fence in front of defendant’s house, the house being between the cross street and the bars, and about one fourth of a mile from the southerly terminus of this road. In 1867 the defendant removed the old door-yard fence in front of his house and built several feet nearer the travelled track of the road, and this is the obstruction complained of. The old fence had stood there more than fifty years, and was built there when the road was first laid out and made.

In respect to that part of the highway northerly of the cross fence, it is not material to consider the evidence as to the use. The inquiry is as to the portion south of that fence, and particularly at the point of the alleged obstruction.

As the record of the laying out of this way is imperfect, it becomes necessary to consider whether the evidence of user is sufficient to authorize the finding of a legal highway at the point in question. By ch. 53, sec. 7, of the Revised Statutes, it is provided that “ No highway that has not been laid out agreeably to statute law shall be deemed a public highway, unless the same has been used by the public for a term of time not less than twenty years.” These provisions are substantially re-enacted in the Gen. Statutes, ch. 68, sec. 8; so that it is not material to consider which is to govern this case.

It is urged by the prosecutor that there is evidence on which a jury might find a use by the public, for a term of twenty years, of the road in question. If that be so, and a jury should so find, it would be conclusive evidence of the existence of a legal highway, unless it has since been discontinued. Wallace v. Fletcher, 30 N. H. 434; Stevens v. Nashua, 46 N. H. 198. It is also urged that there is evidence from which a jury might legally find that the highway was laid out agreeably to statute law; or in other words, that there was a proper application, which has been lost. To sustain the first position, it is necessary to prove that the way was used by the public for a term not less than twenty years. Before-the Revised Statutes, a shorter term was supposed to be sufficient. "When a road or bridge was dedicated to the public, and used by them long enough to evince its usefulness, though less than twenty years, it has been held that the town was bound to repair it. State v. Campton, 2 N. H. 513; Hopkins v. Crombie, 4 N. H. 521; Pritchard v. Atkinson, 3 N. H. 339; and see Stevens v. Nashua, 46 N. H. 199, and cases cited. But now by the Revised Statutes, re-enacted in the General Statutes, the time for such use is fixed at twenty years, and nothing short of that will be sufficient to establish a public highway; and although there may have been prior to the Revised Statutes such use of a way as, under the law then existing, to make it a public highway, yet under the present law it cannot be deemed a public highway unless laid out agreeably to statute law.

The consequence is that this provision of the Revised Statutes operated to discontinue all highways which were established by dedication or prescription merely, and had not been used for a period of twenty years, and so it is expressly decided in State v. Atherton, 16 N. H. 213; where the law is carefully considered and the opinion given by Parker, C. J., who says: “ The legislature have power to discontinue highways; and the seventh section of ch. 53, which has been cited, must operate as a discontinuance of all highways by dedication which have not been used by the public for the term of twenty years. They shall not be deemed public highways. There is then an end of them as such. Its operation upon this case is the same that must have resulted from any other discontinuance of the way.” The effect of this law, then, would seem to' be similar to the law abolishing the settlements of paupers, gained under laws passed prior to certain dates. In both cases the interests affected are public in their nature. No private rights are violated, and of course there can be no constitutional objection to them. The object of the provision in question was to relieve this branch of the law from the embarrassments existing under the old law, by substituting a definite and simple rule for one that was uncertain and perplexing, and the language of the act very clearly applies to ways then existing; and we can perceive no sound objection to the construction given to the law in State v. Atherton, namely, that it operates to discontinue all existing highways not laid out agreeably to statute law, and not used twenty years. The case of Haywood v. Charlestown, 34 N. H. 23, confirms strongly the doctrine of State v. Atherton. It was case for an injury from an alleged defect in a highway, which happened in September, 1853. The way was laid out by the selectmen in 1836, but there was no record or other evidence of a written application. The plaintiff offered to prove that the road was made and opened by the town, and had been used ever since; but the Court ruled that the jury could not rightfully presume the exist-once of the highway until it had been used twenty years, and this ruling was sustained by the whole Court, holding that the provision of the Revised Statutes is conclusive against the position taken by the plaintiff’s counsel on the trial, that the jury might presume the highway to have been legally laid out, from the length of time it had been wrought by the town and used as a highway by the public. In delivering the opinion of the Court, Fowler, J., says that it was only seventeen years from the construction of the road to the date of the accident, and no such presumption, by the express words of the statute, could arise in less than twenty years. The position that the jury might presume the highway to have been legally laid out, was only another form of saying that the highway might be deemed a public highway, contrary to the special enactment of the statute, it having been in use less than twenty years. To hold that such a presumption might rightfully be made, would completely nullify the provisions of the statute.

No allusion is made in the opinion to the fact that the road had been in use seven years before the provision in question went into effect, but it is obvious from the opinion that whether the use was before or after the law, was not regarded as material.

The result of this examination is, that proof of the public use of this way, at the point in question, for the term of twenty years, will establish it as a public highway; and that nothing short of that period will be sufficient, even although there had been such use before the Revised Statutes as would have shown a legal highway under the law then existing.

The question then is, whether there has been twenty years’ use by the public of that portion of the highway alleged to be obstructed by the defendant. If there has been, the jury would be justified in presuming the highway to be legally established. In determining this question, it is not necessary to show any specific act of acceptance by the town or its officers. It is sufficient to show a use by the public for twenty years. State v. Atherton, 16 N. H. 203; Stevens v. Nashua, 46 N. H. 192. In respect to that part of the way southerly of the cross fence, we think there is evidence competent to go to the jury to enable them to find a valid and legal highway. Of course, proof that the town has repaired this part of the road would be competent, and, as matter of evidence, would be entitled to much consideration by the jury; but it would not be decisive as matter of law, neither would the absence of such proof be decisive.

In respect to the other question, we are of the opinion that the public use of the way for any period less than twenty years, cannot be regarded as furnishing a presumption that it was laid out agreeably to the provisions of the statute. The true construction of this provision of the Revised Statutes is, that no public use of a way for a period less than twenty years shall establish its existence as a public highway, either upon the ground of dedication, prescription, or as affording a presumption of a valid laying out, making twenty years’ use to be necessary in all cases where there has not been a valid laying out. This construction is sustained by the case of State v. Atherton, holding that highways by dedication, not used for twenty years, are discontinued by this law; and also by Haywood v. Charlestown, which holds that, from any use of a way short of twenty years, a jury could not presume a legal laying out. To hold otherwise would be only saying in another form that a way might be deemed a public highway contrary to the express provisions of the statute, and would effectually nullify those provisions; and such is the language of Fowler, J., in Haywood v. Charlestown.

The truth is, that when the law in question was passed, the courts were not accustomed to any nice discrimination as to the effect of such public use, whether it operated as proof of dedication, a right by prescription, or that the way had been duly laid out; but it was said to be evidence on which a jury might presume an existing legal highway, in Willey v. Portsmouth, 35 N. H. 311, and the purpose of the law was to determine how long such use should exist to authorize such a presumption. In Pritchard v. Atkinson, 3 N. H. 338, it was said to be well settled, that from long use highways may be presumed to have been legally laid out. In the case of dedication, a way has been held to become a public highway when it has been used long enough to evince its public usefulness. State v. Campton, 2 N. H. 513. See also Stevens v. Nashua, 46 N. H. 199, and cases cited. For these vague and uncertain rules the Revised Statutes substituted a rule which is simple and intelligible, and intended to apply in all the cases. The doctrine of Haywood v. Charlestown is confirmed in Northumberland v. Atlantic & St. Lawrence Railroad, 35 N. H. 574, where it is held that since the Revised Statutes no highway will be presumed to have been legally laid out unless it has been used as a highway for at least twenty years; and when the use is less than twenty years, it must be shown that all the statute requirements have been complied with. So is Smith v. Northumberland, 36 N. H. 38, and in Hall v. Manchester, 39 N. H. 304, the doctrine of Haywood v. Charlestown was recognized.

Another aspect of this question is this: Where then there is a record of an actual laying out of the highway, but it is defective in not showing some statute requisition to have been complied with, aré the jury at liberty to infer, from the public use of the way for any period less than twenty years, that such requisition was in fact complied with 1 Where the record is so ancient as to afford a presumption that by the death of the actors it cannot be amended, and what is recorded naturally leads to a belief that the statute requisites have probably been complied with, although some of them are not stated in the record, a jury would be at liberty to find from such record, with proof that the way so recorded was made and opened by the town, and used for many years though less than twenty, that the proceedings had been regular, and the requisitions of the statute complied with. In State v. Alstead, 18 N. H. 59, it was decided that the jury might make such inference from a record of forty years’ standing; and in laying down this doctrine the Court does not allude to the fact that appeared in the case, that the way had been opened and used by the public for many years; but we think the opinion must have embraced, as one of the elements on which it was founded, this public use; for without such use, we do not understand that such an inference can be made. On the contrary, if the road has never been opened or used, we think the presumption must rather be that it had not been legally laid out. In this case the record did not show any application; and after the lapse of thirty-nine years, it was held that it might be left to the jury, with proper instructions, to find a compliance with the statute in this respect. In Pritchard v. Atkinson, 3 N. H. 335, the record of the highway showed no application or award of damages, and the Court, after the lapse of seventeen years, expressed an opinion that when a highway has been made in pursuance of a laying out by selectmen, and has been used for,.a considerable time as such by the public without interruption, a jury would be warranted in presuming an application and notice, and an adjustment of the damages.

In analogy to this is the doctrine of Cavis v. Robertson, 9 N. H. 524, and Northwood v. Barrington, 9 N. H. 369, where it was held that a jury might infer from the record of the choice of an officer, and proof of his having served in the office for one year, that the town meeting at which he was chosen was legally warned. This was after the lapse of about forty years from the date of the record, when it was to be presumed that an amendment of the record could not be made. So an ancient deed may be read, where possession is shown to have accompanied it, without other proof of its execution. Homer v. Cilley, 14 N. H. 97, 98.

Upon these authorities it is quite clear that before the Revised Statutes the construction of a way laid out by the selectmen, and its public use for a period even less than twenty years, was evidence upon which, in connexion with the record a jury would have been at liberty to find, that in some particular not shown by the record, the statute had in fact been complied with, especially when it appeared that the proceedings were of a date so ancient that an amendment of the record could not be made. The question is, then, whether the admissibility of this evidence has been taken away by the Revised Statutes. It is clear that there may be cases where a defect in the record may be supplied by direct proof, as that an application in writing had been made and was lost, and so proof of its contents adduced. In such a case, and also where the entire record has been lost or destroyed, and there was some evidence of its contents, proof of long public use, though less than twenty years, might properly have great weight, and we are of the opinion that the statute does not render it incompetent. The laws in respect to the statute of limitations and the sales of lands for non-resident taxes, furnish illustrations of this position. The adverse occupation of land may not be of such duration or character as to bar an action, yet it might be received and weighed with other evidence to prove a lost deed. So, when a party sets up a sale of land for taxes, and shows enough of the proceedings to render it not improbable that all the requisites of the statute had been complied with, and also shows that some of the ordinary evidence of the proceedings has probably been lost by time and accident, then long and quiet possession of the land may be left to the jury as evidence of particular facts, the ordinary proof of which cannot be found. This is the doctrine of Waldron v. Tuttle, 3 N. H. 340. The question of abandonment it would seem can hardly arise here. If the jury find a legal highway, it must be by finding a public use during a period when the way at the point in question was used as little, to say the least, as at any time since.

Should it hereafter appear that the highway was legally laid out, a question might be made whether there had been such a non-user as to furnish evidence of abandonment. It will be observed, however, that between the cross fence and cross street the way has always been opened and fences maintained by the land owners on both sides, who have used it for driving cattle to pasture, for carting agricultural products, manure, and for other purposes for which they had occasion. Nor is there any evidence that such land owners have resumed the occupation of the land over which the way passes under a claim of right. If then the way has always been kept open, and the public never excluded, but the way has always been used as a public highway by the land owners for access to their farms and for farming purposes, it could hardly be contended that the public right has been lost by abandonment. See Angel on Highways, sec. 323; State v. Alstead, 18 N. H. 59; Webber v. Chapman, 42 N. H. 326. It is not probable, however, that this question will arise, and if it should, it is to be presumed that the facts bearing upon it will more fully appear.

It is also contended by the defendant, that if the road is established by use alone, the public is limited to so much as it has actually used,— that is, the travelled track and the space needed for the proper enjoyment of that part. But we think this is a question for the jury. The easement is not necessarily limited to the travelled path and the ditches on each side, but where the road has been fenced out for many years about the usual width, and there is nothing to control it, a jury would be justified in finding the whole space between the fences to be a public highway. Angel on Highways, sec. 155, and cases cited. Rex v. Wright, 3 B. & Adolph. 681; Sprague v. Waite, 17 Pick. 309; and so the law was understood to be in Willey v. Portsmouth, 35 N. H. 311, 312, and in Coffin & ux. v. Plymouth, 49 N. H. 173. When the owner of land fences out a suitable space for a highway, and throws it open to the public as such, and it is accepted and used accordingly for twenty or more years, a jury might properly find that the whole space was so dedicated and accepted, although a part of it only was wrought for travel. It is quite obvious that the space between the wrought road and its exterior limits may be needed for various purposes, as for furnishing earth and other materials for making the road, constructing culverts and watercourses, making changes in the travelled path, and avoiding obstructions by snow — Com. v. King, 13 Met. 118; and for these and other reasons the space given to highways is very generally much more than what is occupied by the travelled path, and there can be no doubt that it is competent for a jury to find, from ancient fences and other circumstances, that the true limits of a highway extend beyond the wrought road.

If either party elect, the case is discharged.