FROM BELKNAP CIRCUIT COURT. The case states that the road, as laid out by the commissioners, at the west end intersects an old public highway nearly at right angles forty-five rods from the western terminus named in the petition. This brings the case clearly within the doctrine of Cole v. Canaan, 29 N.H. 88, and Flanders v. Colebrook, 51 N.H. 300. The rule followed in Stinson v. Dunbarton,46 N.H. 385, does not apply.
I think this exception to the laying out was well taken, and that the report should for this cause have been set aside. I am of opinion that the commissioners of Belknap county did not exceed their powers under Gen. Stats., ch. 62, secs. 10, 11, 12, in summoning in the town of Ashland in Grafton county, and reporting that that town should contribute to New Hampton in building the road.
By the act of 1850 it was provided, that if the commissioners, upon examination, were of opinion that the town or towns through which the proposed road passes would be excessively burdened by defraying all the expenses of its construction, and that any other town or towns in the vicinity, in the county or counties through which such road passes, would be greatly benefited by its construction, they may give notice, c., and apportion the expense to such other towns as they deem just and reasonable, c. In the General Statutes, the words "in the county or counties through which such road passes" are stricken out, and the provision is, that "when a petition for laying out a highway is referred to the commissioners, and any town in which the highway may be may present their petition to the commissioners setting forth that the expense of the proposed highway would be excessively burdensome to them, and that another town named, situate in the vicinity, would be greatly benefited thereby, and praying that a part of said expense may be borne by such other town." Gen.
Stats., ch. 62, sec. 10. I think this alteration was designed to effect and does effect an important change in the law. That the learned commissioners who *Page 334 revised the statutes so regarded it, is shown by their report to the legislature, where the new law is marked as being a substitute for the old one, and the alteration as material. The reasonableness and justice of this alteration are very apparent.
It needs no argument to show that the interposition of a county line makes no difference with the benefit which may result to the inhabitants of a town from the building of a road outside their corporate limits. There is no reason why the people of a town in Grafton county may not be just as much benefited by the opening of a new road in an adjacent town in Belknap county, as by the opening of a new road in an adjacent town on the other side, in Grafton county.
It is said, on behalf of the town of Ashland, that the jurisdiction and powers of county commissioners are restricted to the limits of their respective counties; and this is, in general, true. At the same time it is also true, that they are public officers, created by the legislature, with such powers and such jurisdiction as the legislature may from time to time see fit to confer upon them.
But this objection and any apparent incongruity in the law are much modified by the fact that the judgment of the commissioners is by no means final; for it is expressly provided, that "such other town may appear and be heard as a party upon the acceptance of the report, and by its acceptance said town shall be made liable to pay the portion of damages and expenses so assigned." Gen. Stats., ch. 62, sec. 13.
I think the objection that the selectmen, who originally laid out the highway which the town within two years voted to discontinue, were disqualified to act upon the petition, came too late, and was properly overruled.
Loading…