Gurnsey v. Edwards

Eastman, J. It must be regarded as settled in this State that the laying out of highways upon inducements or considerations other than the public good, is illegal. Dudley v. Cilley, 5 N. H. Rep. 558; Dudley v. Butler, 10 N. H. Rep, 281; Third Turnpike Co. v. Champney, 2 N. H. Rep. 199; Knowles' Petition, 2 Foster’s Rep. 361; Goodwin v. Milton,. 5 Foster’s Rep. 458. It is also a general principle that where there is no provision of law by which the proceedings of an inferior court, or other tribunal, possessing only limited and qualified powers, may be reexamined or reviewed, their doings may be enquired into collaterally. Thus the proceedings of two justices of the quorum, in granting a poor debtor’s discharge, the acts of fence viewers, and ordinarily, the doings of selectmen, may be examined and tested, and their records impeached, in actions where their legality is involved. Robbins v. Bridgewater, 6 N. H. Rep. 524; Harlow v. Pike, 3 Greenl. Rep. 438; Gear v. Smith, 9 N. H. Rep. 63; Sanborn v. Fellows, 2 Foster’s Rep. 473. But notwithstanding these general principles, by which the doings of selectmen, in laying out highways, may be inquired into collaterally, and notwithstanding highways cannot be legally laid out upon considerations: other than the [230] public good, yet the party proposing to take advantage of the illegality must be in a situation so to do. If the selectmen have no jurisdiction of the case, the proceedings are absolutely void, and must fail, under all circumstances. But if the character of the defect be such, that it might have been cured or obviated, it cannot prevail in after proceedings, unless the party raising the exception is in a situation to take advantage' of the error. The road in question was laid out in November, 1848. At that time the title to the locus in quo was in Caleb S. Graves; so far, at least, as the action of the selectmen was to be concerned in the laying out of the road. He was the mortgager in possession, and was the proper person to be notified, and also the proper person to whom damages should be awarded for the taking of the land. Parish v. Gilmanton, 11 N. H. Rep. 293. Graves was a petitioner for the road, and on the 20th. of October, 1848, acknowledged on the back of the petition, service of notice of the hearing, and released all claim to damages; and being the proper person to be notified and to receive the award of damages, he had the right both to waive notice and to release damages, in the manner in which he did. The laying of the road was a sufficient consideration for the release of the damages. It is common practice for a land owner, in proceedings in the common pleas, for the establishing of a highway, after report made and exceptions taken to its acceptance, on the ground of failure to notify or to award damages, to release all claim to damages, and to waive all advantage for the want of notice. The town may take the.exception, but the same may be cured by the' action of the land owner. The case finds that the road in question was laid out by the selectmen, both because they thought the public good required it, and because Graves and Fuller stated to them that if they would lay the road, the petitioners would make it without any expense to the town; that they might have [231] laid out the road even at the expense of the town, but the petitioners having offered to make it, they took that also into consideration. A laying out .upon such inducements, would, upon the principles stated, clearly be illegal; and any person legally aggrieved by the same, and not surrendering his rights, would not be precluded from taking advantage of the illegality on all proper occasions. But this plaintiff does not stand in a situation to question the correctness of the doings of the selectmen. Her title to the premises was not acquired till some time subsequent to the laying out of the road, and the legality of the laying must be tested by what took place at the time it was laid. She holds the title of Graves, who had been not only a petitioner for the road, and instrumental, by the illegal inducements held out, in causing it to be laid, but had also, when he had a right so to do, released all claim for damages on account of the land taken. Graves, by his acts, is estopped from taking advantage of the illegality of the laying of the road, and the plaintiff, who holds his title, which was derived after the laying out, can stand in no better situation. Neither of them can maintain the action. According to the provisions of the case, the verdict against Edwards must be set aside, and there must be Judgment for the defendant.