Laconia v. Gilman

The question raised by the demurrer is, whether this action can be maintained. The legislature has provided a remedy whereby a town, which has been compelled to pay damages to one injured by a defect in a highway, may recover the damages and costs so paid from the person causing the obstruction or defect. Gen. Stats., ch. 70, sec. 7. Provision is also made for removing obstructions placed in a highway. Gen. Stats., ch. 70, secs. 1-6. And any person encroaching upon a highway is made liable to fine or imprisonment. Ib., secs. 8-11.* But it is well settled that these remedies are not exclusive. *Page 129 A town as such has no right of was over a public highway within its borders. It represents the public, but is not itself the public. The whole community, whether inhabitants of the town, or of other towns, or from without the state, have equal rights and privileges in the public ways with the inhabitants of the town within which the highway is located. State v. Hampton, 2 N.H. 25; Troy v. Railroad, 23 N.H. 83. In the latter case it was held, after full argument and upon mature deliberation, that towns have such a qualified interest in the roadways and bridges which they have constructed, that they may maintain an action upon the case for the destruction or obstruction of a road, or the conversion of the materials. This right and remedy grows out of the duty imposed by law upon towns to make and keep in repair its highways, suitable for the public travel thereon. Being required to construct highways and bridges, often at great expense, and being bound to support them in condition suitable for the public travel, the law necessarily gives them a qualified property therein, to protect them against encroachments, and to enable the towns to secure themselves against any greater expense than may be necessary to maintain their roads in proper condition. When the law imposes on any one a duty, it, by implication at least, gives everything without which that duty cannot be performed. This doctrine, as laid down in Troy v. Cheshire Railroad, is entirely correct in principle and is supported by authority — State v. Hampton,2 N.H. 25, Harrison v. Parker, 6 East 154, Hooksett v. Company,44 N.H. 105; and the same doctrine is recognized in Lebanon v. Olcott,1 N.H. 339. It seems wholly unnecessary to discuss the matter anew, and there is no occasion to revise or qualify the doctrine of these cases. It is objected that it is not alleged in the declaration that the town has suffered any damage from the alleged obstruction, and consequently that it cannot recover in this suit. It is alleged that the town was compelled to remove a part of the wall at great expense, which is a sufficient allegation to entitle the town to recover whatever damage it may have sustained on that account. *Page 130 * This legislation was neither novel nor experimental. The act of May 14, 1714 provided, "Forasmuch as divers incumbrances and incroachments have been made in and upon the common roads, highways, and streets heretofore laid out (or which shall hereafter be laid out) within the several towns of this province: