Rowe v. Addison

Eastman, J. The right acquired by the public in a highway legally established for the public use, is only that of an easement ; a right of passage over the land. Baker v. Shepard, 4 Foster 208; Copp v. Neal, 7 N. H. 276; State v. New-Boston, 11 N. H. 409; Makepeace v. Worden, 1 N. H. 16; Stack312 pole & als. v. Healey, 16 Mass. 33; Robbins v. Borman, 1 Pick. 122; Perley v. Chandler, 6 Mass. 454. And when a «highway is legally discontinued, the public right of passage ceases, the duty of the town to keep it in repair no longer exists, and the owner of the land has it again free from encumbrance. Hampton v. Coffin, 4 N. H. 518; Cheshire Turnpike v. Stevens, 10 N. H. 137; State v. New-Boston, 11 N. H. 407. A highway may continue for a longer or shorter time, but so long as it exists, and the easement belongs to the public, so long have they the right to its control. This right consists in the power to make the road and to keep it in repair suitable for travel, and in its free use by the public for all proper purposes, until discontinued. In making or repairing highways, however, nothing can be taken from the land over which they are laid, by the town authorities, for any purpose except the legitimate end of constructing the roads. Everything growing or standing upon the land, the trees, timber, &c., belongs to the owner ; and every thing that goes to form the land itself also belongs to him, except what is necessary to be actually used in the making or repairing of the highway. Baker v. Shepard, 4 Foster 208; Makepeace v. Worden, 1 N. H. 16; Bullen v. Runnels, 2 N. H. 261; Adams v. Emerson, 6 Pick. 57; 1 Rolles’ Abr. 392; 1 Burr. 143. By statute, surveyors of highways have power within their districts to remove any gravel, sand, rocks, or other material from the travelled part of any highway therein, “ without damage or injury to the adjoining land,” to any other part of the highways in their districts, for the purpose of repairing and grading the same ; but they are prohibited from making, for any purpose, an uncovered trench or ditch by the side of the travelled part of any highway next and opposite to any dwelling-house or yard situate thereon, and from obstructing in any way the passage to and from the same. Comp. Stat., chap. 59, sec. 16. Upon the laying out of highways, compensation is awarded to the land owners for all such damages as may fairly result to [313] them by the making of the road in a suitable and proper manner ; not only on account of the land actually taken, but on account of the injuries to their other lands and property, and the inconveniences to which they are subjected. And if the roads are made with discretion, and in a suitable and proper manner, surveyors and others who act under them are not liable. Callender v. Marsh, 1 Pick. 417; Lebanon v. Olcott, 1 N. H. 339; Woods v. Nashua Man. Co., 4 N. H. 527; Aldrich v. Cheshire Railroad, 1 Foster 359; Dearborn v. Boston, Concord & Montreal Railroad, 4 Foster 179, 185; Steele v. Western Inland Co., 2 Johns. 283; Pritchard v. Atkinson, 3 N. H. 335. The converse of the proposition is of course true, and surveyors are liable in damages for any wanton, malicious or improper acts in making or repairing highways within their districts. The authorities already cited sustain this position. From these principles it is apparent that surveyors of highways are not authorized to make embankments on the sides of roads, so as to throw back upon adjoining owners the water that naturally flows into the highways; but in such cases it is their duty to make culverts or bridges for it to pass across the roads, or to make channels or canals by the sides of the highways, so that it may flow off without injury. Were such embankments and dams to be made, they might in some instances entirely destroy the land of the adjoining owner, and the exercise of such a power in making or repairing roads must be regarded as unsuitable and improper, if not arbitrary. Land owners do not receive from the towns compensation for damages of this nature; they are not the proper subject of consideration by the commissioners or selectmen who lay out highways, for they can only award damages arising from the proper construction of the same. If surveyors of highways have not the right to make embankments so as to throw water back from its natural flow upon adjoining owners, to their injury, much less have they the power to make bars and embankments to turn water upon other roads, or upon those whose lands do not adjoin their districts. [314] From the facts stated in this case, we take it that the natural flow of the water which fell in front of the plaintiff’s house, or which settled in there, was down the highway leading to Wilmot Centre, and through the district of which the defendant, Addison, was surveyor. To stop this water he made a substantial bar across the road, which threw the water back from his district, in which it would naturally flow, into another district, and upon the plaintiff’s premises, doing him an essential injury. The commissioner to whom this case was referred, has found that, if the surveyor was only to look to the interest of his own highway district, this was a judicious and proper improvement; but if he was bound to consider the effect it would produce upon the premises of the plaintiff, and upon the highway in front of the premises, or upon either, it was not a proper and judicious exercise of the discretion vested in him as surveyor. Now we think it quite manifest that he was bound to consider the effect which his acts would have, both upon the adjoining district and upon the premises of the plaintiff; each of which have been substantially injured by his doings — the town having been indicted in consequence of the water that was thrown into the road, and the plaintiff’s house having been made difficult of access by the water’s flowing to his door at a depth of from three to five inches. He had no right thus to stop or divert the water from its natural flow, but it was his duty, or that of the town, to have prepared some channel through which it might pass off, without injury, in its natural course. As well might he have taken stone from his district, which could not be conveniently disposed of there, and drawn them into the adjoining district or upon the plaintiff’s premises. This might be a benefit to the district of which he was surveyor, but it would also be an unwarrantable infringement upon the rights of others, for which he would be answerable. It is no sufficient answer for the defendant that the ground near the plaintiff’s premises has been raised, so that there is not so large a hollow to contain the water collecting there as there was at the time the house was built. This filling in may in some [315] instances cause the water to run down the highway towards Wilmot Centre, when otherwise it would not, but there is nothing in the facts reported showing this to be the cause of the alleged injury, or that the natural current of the water has been changed by this raising of the land, or the quantity discharged materially increased. Nor do we discover any thing in the report of the commissioner from which it can be legitimately found that the damages reported by him were not the direct result of the improper and illegal action of the surveyor and those acting with him in making the bar, independent of any raising of the land near the plaintiff’s house. The warrant from the selectmen could afford no protection, either to the surveyor or to those acting under him, in doing illegal acts. If the plaintiff has done any thing which he had not a right to do, he may be made answerable therefor in a proper proceeding; but being satisfied that nothing appears upon this report that can relieve the defendants in this suit, there must be Judgment for the plaintiff.