Cole v. Town of Canaan

Woods, J. The prayer of the petition was for a highway in Canaan, commencing at or near the end of the road near Daniel B. Cole’s house, thence to run northwestwardly on the most practicable route till it intersects the road leading from the Orange road to Washington Wilson’s house, [92] at a stake a little northerly of Lorenzo Jameson’s house in said Canaan.” The highway, as laid out, is admitted to be correct as to the point of beginning, and is in conformity with the petition in that particular. It runs thence, by various courses set forth in the report, “ to the centre of the now traveled highway leading to Washington Wilson’s house, in said Canaan, thence north thirty-five degrees, east on the now traveled highway sixteen rods, to a stake standing on the north side of the highway a little north of said Jameson’s house.” The question arising upon the case is, whether the road laid out is the same road prayed for; whether the laying out is in conformity with the prayer of the petition. The law requires that the road laid out should be substantially the same as that represented in the petition, to be required by the public exigencies. Is that rule of law complied with in this case ? Is a road running by various courses “ to the centre of the now traveled highway leading to Washington Wilson’s house, in said Canaan, thence north thirty-five degrees, east on the now traveled highway sixteen rods, to a stake standing on the north side of the highway, a little north of said Jameson’s house,” the same way, substantially, as a road “ commencing at or near the end of the road, near Daniel B. Cole’s house, thence northwestwardly on the most practicable route till it intersects the road leading from the Orange road to Washington Wilson’s house, at a stake a little northerly of Lorenzo Jameson’s house in said Canaan ?” The point at which the road, as laid out, strikes the road leading from Orange to Washington Wilson’s house is, in fact, as ascertained by subsequent admeasurement, about twenty-two rods from the “ stake a little northerly of Lorenzo Jameson’s house,” in a direction south, thirty-five degrees west therefrom. The road thence runs north thirty-five degrees, east on the road which it thus strikes, meets with, [93] or intersects, and there it reaches the point in the road at the stake a little northerly of Lorenzo’s Jameson’s house. It is claimed that the road thus laid out, and running upon the road which, by the petition, it was to intersect, can in no proper sense be said to intersect that road at the stake aforesaid. And that, consequently, it cannot be said to run upon any route falling within the petition, or contemplated by it. And we incline to adopt that view. The road prayed for is a road which was to intersect the road leading from the Orange road to Jameson’s house, at the stake before mentioned. Now the road laid out did in fact intersect that road twenty-two rods southwesterly of that stake, and did not, in any proper meaning of the term, intersect it at that point. It merely run upon the road leading to Wilson’s house until it reached the stake, but did not cut it, or meet with it, or intersect it there. Whatever latitude was given in the petition to the intermediate course of the way, (Rules of Court 81; Wiggin v. Exeter, 13 N. H. Rep. 304,) the termini, we think, were definitely and plainly fixed, as by law they should be, ( Wiggin v. Exeter,) by the terms of it. The northwesterly terminus of the way prayed for was fixed at the point upon the road leading from the Orange road to Wilson’s house, at which it could be properly said so to meet with it as to intersect it at the aforesaid stake. Inasmuch as it is seen by the plan accompanying and making part of the case, that the road laid out intersects the road leading from the Orange road to Wilson’s, twenty-two rods from the stake near Jameson’s, and not at the stake, as it should do, in order to be in conformity with the petition, we think the laying out was not authorized, and that the motion of the petitioners for judgment on the report should be denied. Motion denied»