Foster, J.
In the establishment of highways within*any town, the selectmen derive their authority and powers wholly from the statute. Pritchard v. Atkinson, 3 N. H. 335.
The statutes provide — Gren. Stats., ch. 61, § 1 — that selectmen, on petition, may lay out any new highway within their town for which there shall be occasion, either for the accommodation of the public or of the person applying. And by the twelfth section of the same chapter it is enacted, that “ any highway for the accommodation of an individual may be laid out, subject to such gates or bars across the same as may be expedient, to be erected and maintained by the person, his heirs or assigns, for whose benefit the highway is laid out.”
Such was the law, substantially, for a long time prior to the enact[551]*551ment of the General Statutes in 1867. And in such a condition of the law it has been uniformly considered and held that there was no distinction as to the duty of repairs and the liability for damages between ways laid out for the accommodation of individuals chiefly, and other common and public highways — the duty and the liability in both cases being cast upon the town. In either case the road is deemed to be a public highway. Metcalf v. Bingham, 3 N. H. 459; Clarke v. B. C. & M. Railroad, 24 N. H. 118; Proctor v. Andover, 42 N. H. 351.
Notwithstanding this, it is said to have been the practice to some extent in this State for selectmen, in laying out a highway subject to gates and bars, and for the accommodation of an individual, to impose upon that individual the burden of making and maintaining the highway ; and that the selectmen in this case acted in conformity with that practice, as indicated by the forms of the returns of selectmen in such eases, which are to be found in some of the books provided for the guidance of town officers.
But whatever may have been the general practice, and whatever misapprehension may have existed as to the state of the law upon the subject, — and whether, with the design of correcting an erroneous practice and a misunderstanding of the law, or of placing new restrictions upon the jurisdiction and powers of selectmen concerning highways,— the legislature of 1867, in the enactment of the General Statutes, en-grafted upon the law as it had previously existed the express provision that, except with regard to the erection and maintenance of gates or bars across a highway laid out for the accommodation of an individual, “ no other condition shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made.” Gen. Stats., ch. 61, § 12.
In express violation of this statute,, the selectmen of Bow, in their return of the laying out of the highway in question, on the 5th January, 1869, undertook to require that the highway should be u made by the petitioners,” and should “ remain a highway so long as said petitioners shall keep it in repair, and no longer.”
The plaintiff maintains that the laying out of the highway was invalid by reason of the prohibited condition ; and that he is entitled to treat the defendant as a trespasser in passing through his lands upon the pretended highway.
The power to lay out highways, conferred by our statutes upon selectmen, is of a judicial nature. Haywood v. Charlestown, 34 N. H. 26; State v. Richmond, 26 N. H. 235; Hall v. Manchester, 39 N. H. 301. And errors in the proceedings of such a tribunal may be corrected by a certiorari. Parks v. Mayor, &c., of Boston, 8 Pick. 218; Hancock v. Boston, 1 Met. 122; State v. Richmond, 26 N. H. 236.
But it is equally true, that.'wherever any persons assume to act under a special and limited power conferred by law, their proceedings may be. impeached when collaterally brought in question ; and their doings may be avoided by showing that they had no jurisdiction, or that they have exceeded the limits of their authority. Russell v. Perry, 14 N. H. 152; State v. Richmond, before cited; Grurnsey v. Edwards, 26 N. H. 229.
[552]*552In Pritchard v. Atkinson, 3 N. H. 337, Mr. Ch. J. Richardson said: “ As selectmen derive their authority to lay out highways from a statute, it is not to be doubted that, in exercising the authority, they must substantially pursue the directions of the statute: otherwise their doings will be void.”
But since the decision in State v. Richmond, this term “ void ” is perhaps seldom, unless in a very clear case, to be regarded as implying a complete nullity, but is to be taken in a legal sense, subject to large qualifications in view of all the circumstances calling for its application and the lights and interests to be affected in a given case.
The laying out of a highway by a tribunal having no jurisdiction of the subject-matter would be void, in the pure sense of that term — absolutely null — Gurnsey v. Edwards, before cited; but the laying of a road by a tribunal having jurisdiction of the subject-matter and of the parties concerned therein may be so affected by some, irregularity as to be void in a different sense, — that is, void as to some person, or in some particular, without impeachment of the whole proceeding ; or, perhaps, void, until or unless confirmed by the act or acquiescence of the party entitled to bring the validity of the matter in question.
And in the present case, although the selectmen have' manifestly exceeded their authority by imposing upon the petitioners duties and liabilities not merely inconsistent with the whole theory of the maintenance of public highways, but expressly prohibited by the statute, still, we are not inclined to regard their proceedings as void absolutely, and as to all the world, and for all purposes, and as incapable of confirmation to any extent.
The defendant contends that the objectionable parts of the return and of the laying out are separate and distinct from the valid parts, and may be considered void or voidable without impairing the rest of the proceedings ; that if the condition must be regarded as contrary to law, the condition alone is void or voidable, and the remainder may nevertheless stand as if it were absolute and unconditional.
It is unquestionably a sound principle, that the execution of a power may be good in part and bad in part, and that in many cases the excess only in the execution of the power will be void. But this principle holds good only where there is a complete execution of the authorized and valid power, and only a distinct and independent limitation unauthorizedly added, and where the boundaries between the sound part and the excess are clearly distinguishable. 4 Kent’s Com. 346.
But it seems to us that the clause in question cannot be regarded as an independent, subsequent condition. On the contrary, if it may be taken into consideration at all, it serves to convince us that without such condition and limitation the selectmen never would have undertaken to lay out the road.
It is undoubtedly to be presumed in the outset, that the selectmen were influenced only by considerations of the public exigency in laying out the road; but this presumption may be controlled, and, as it seems to us, it is, by the fact of the imposition of conditions and limitations [553]
Free access — add to your briefcase to read the full text and ask questions with AI
Foster, J.
In the establishment of highways within*any town, the selectmen derive their authority and powers wholly from the statute. Pritchard v. Atkinson, 3 N. H. 335.
The statutes provide — Gren. Stats., ch. 61, § 1 — that selectmen, on petition, may lay out any new highway within their town for which there shall be occasion, either for the accommodation of the public or of the person applying. And by the twelfth section of the same chapter it is enacted, that “ any highway for the accommodation of an individual may be laid out, subject to such gates or bars across the same as may be expedient, to be erected and maintained by the person, his heirs or assigns, for whose benefit the highway is laid out.”
Such was the law, substantially, for a long time prior to the enact[551]*551ment of the General Statutes in 1867. And in such a condition of the law it has been uniformly considered and held that there was no distinction as to the duty of repairs and the liability for damages between ways laid out for the accommodation of individuals chiefly, and other common and public highways — the duty and the liability in both cases being cast upon the town. In either case the road is deemed to be a public highway. Metcalf v. Bingham, 3 N. H. 459; Clarke v. B. C. & M. Railroad, 24 N. H. 118; Proctor v. Andover, 42 N. H. 351.
Notwithstanding this, it is said to have been the practice to some extent in this State for selectmen, in laying out a highway subject to gates and bars, and for the accommodation of an individual, to impose upon that individual the burden of making and maintaining the highway ; and that the selectmen in this case acted in conformity with that practice, as indicated by the forms of the returns of selectmen in such eases, which are to be found in some of the books provided for the guidance of town officers.
But whatever may have been the general practice, and whatever misapprehension may have existed as to the state of the law upon the subject, — and whether, with the design of correcting an erroneous practice and a misunderstanding of the law, or of placing new restrictions upon the jurisdiction and powers of selectmen concerning highways,— the legislature of 1867, in the enactment of the General Statutes, en-grafted upon the law as it had previously existed the express provision that, except with regard to the erection and maintenance of gates or bars across a highway laid out for the accommodation of an individual, “ no other condition shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made.” Gen. Stats., ch. 61, § 12.
In express violation of this statute,, the selectmen of Bow, in their return of the laying out of the highway in question, on the 5th January, 1869, undertook to require that the highway should be u made by the petitioners,” and should “ remain a highway so long as said petitioners shall keep it in repair, and no longer.”
The plaintiff maintains that the laying out of the highway was invalid by reason of the prohibited condition ; and that he is entitled to treat the defendant as a trespasser in passing through his lands upon the pretended highway.
The power to lay out highways, conferred by our statutes upon selectmen, is of a judicial nature. Haywood v. Charlestown, 34 N. H. 26; State v. Richmond, 26 N. H. 235; Hall v. Manchester, 39 N. H. 301. And errors in the proceedings of such a tribunal may be corrected by a certiorari. Parks v. Mayor, &c., of Boston, 8 Pick. 218; Hancock v. Boston, 1 Met. 122; State v. Richmond, 26 N. H. 236.
But it is equally true, that.'wherever any persons assume to act under a special and limited power conferred by law, their proceedings may be. impeached when collaterally brought in question ; and their doings may be avoided by showing that they had no jurisdiction, or that they have exceeded the limits of their authority. Russell v. Perry, 14 N. H. 152; State v. Richmond, before cited; Grurnsey v. Edwards, 26 N. H. 229.
[552]*552In Pritchard v. Atkinson, 3 N. H. 337, Mr. Ch. J. Richardson said: “ As selectmen derive their authority to lay out highways from a statute, it is not to be doubted that, in exercising the authority, they must substantially pursue the directions of the statute: otherwise their doings will be void.”
But since the decision in State v. Richmond, this term “ void ” is perhaps seldom, unless in a very clear case, to be regarded as implying a complete nullity, but is to be taken in a legal sense, subject to large qualifications in view of all the circumstances calling for its application and the lights and interests to be affected in a given case.
The laying out of a highway by a tribunal having no jurisdiction of the subject-matter would be void, in the pure sense of that term — absolutely null — Gurnsey v. Edwards, before cited; but the laying of a road by a tribunal having jurisdiction of the subject-matter and of the parties concerned therein may be so affected by some, irregularity as to be void in a different sense, — that is, void as to some person, or in some particular, without impeachment of the whole proceeding ; or, perhaps, void, until or unless confirmed by the act or acquiescence of the party entitled to bring the validity of the matter in question.
And in the present case, although the selectmen have' manifestly exceeded their authority by imposing upon the petitioners duties and liabilities not merely inconsistent with the whole theory of the maintenance of public highways, but expressly prohibited by the statute, still, we are not inclined to regard their proceedings as void absolutely, and as to all the world, and for all purposes, and as incapable of confirmation to any extent.
The defendant contends that the objectionable parts of the return and of the laying out are separate and distinct from the valid parts, and may be considered void or voidable without impairing the rest of the proceedings ; that if the condition must be regarded as contrary to law, the condition alone is void or voidable, and the remainder may nevertheless stand as if it were absolute and unconditional.
It is unquestionably a sound principle, that the execution of a power may be good in part and bad in part, and that in many cases the excess only in the execution of the power will be void. But this principle holds good only where there is a complete execution of the authorized and valid power, and only a distinct and independent limitation unauthorizedly added, and where the boundaries between the sound part and the excess are clearly distinguishable. 4 Kent’s Com. 346.
But it seems to us that the clause in question cannot be regarded as an independent, subsequent condition. On the contrary, if it may be taken into consideration at all, it serves to convince us that without such condition and limitation the selectmen never would have undertaken to lay out the road.
It is undoubtedly to be presumed in the outset, that the selectmen were influenced only by considerations of the public exigency in laying out the road; but this presumption may be controlled, and, as it seems to us, it is, by the fact of the imposition of conditions and limitations [553]*553entirely inconsisteiit with the supposition that the road was required for the public necessity or convenience.
It is entirely clear, as we have seen, that a road laid out subject to gates and bars, and laid out originally for the accommodation of an individual, is still a public highway. “ Indeed,” says Bellows, J., in Proctor v. Andover, “ it must very often happen, that roads, originally laid chiefly for the' accommodation of individuals, become in a short time wholly public in their character, by the progress of settlements along their line, or simply by their extension and connection with other roads; and the legislature could never have intended to exempt the towns from liability in such cases, because originally laid out chiefly with a view to private use.”
And therefore it is, that the general provisions of the statutes with regard to the making and maintenance of the repairs of highways, and the liability of towns for damages by reason of defects therein (Gen. Stats., ch. 66, § 1; ch. 68, § 1; ch. 69, § 1) cover and embrace all such highways as the one in question.
But by this condition all these provisions l’elating to public highways are nullified. There is a wide difference between this case and that of Dudley v. Cilley, 5 N. H. 558, where the condition only, was held void. But there the only condition annexed to the report was, that the petitioners should pay the land damages. Here the petitioners are required to build and to keep in repair, and when the road gets out of repair it is to become ipso facto no road; and so the town have no duty, no burden, and no liability. And all this appears from the report itself.
What becomes, then, of the presumption that the road was demanded by the public necessity or convenience ? Is it not fair to presume, is not. the inference inevitable, that the selectmen could not have regarded that road as a public necessity or convenience, which did not to their minds justifythenecessityforthe imposition of any of the burdens and liabilities concurrent with and indispensable from the advantages of and the occasion for a public highway ?
It is contended that we ought to expunge the condition, and hold the laying out of this road valid; but to do so we must obstinately close our eyes to the obvious considerations which affected the action of the selectmen. It could not have been for the sake of the public good that they ignored the public duty, the public burthens, and the public liability, contrary to the provisions of all the other laws relating to the liability and duty of towns concerning highways, and in express violation of the plain provisions of the particular statute applicable to this particular case.
It seems to us, therefore, that, for the purpose of ascertaining the intention of the selectmen and for giving a construction to their return, the whole must be taken together. And being thus taken together, we are not precluded from inquiring into the facts of the case and the motives which may have influenced the selectmen. Evidence dehors the record is not required for this purpose. The report contains intrinsic, palpable evidence so clear as to control and exclude the presumption that this road was laid out pro bono publico.
[554]*554“And when it appears,” said Richardson, C. J.,in Dudley v. Cilley, “ that a court has laid out a highway for any other cause than common convenience and necessity, the proceedings are irregular and may be quashed.” See Com. v. Sawin, 2 Pick. 547.
And when we look at the whole, and construe one part with reference to the other, we become satisfied that to reject so very essential a part of the return as this condition, and allow the rest to stand, would lie to do what the selectmen never intended, namely, to establish a common public highway in accordance with and subject to all the provisions of the law regulating the liability of towns in relation thereto.
We cannot suppose they would have laid out the road if they had understood the condition was void. It was annexed for the purpose of controlling and limiting the liability of the town. It was annexed for the sole advantage of the petitioners. It controlled and governed the decision of the selectmen. It was a limitation contrary to law, and it was so intimately connected with the proceedings as to contaminate and invalidate the whole.
But is the plaintiff in a position to take advantage of the defect in these proceedings, in the manner now adopted by him ?
The laying out of this highway is to be regarded as void only as to such as have cause to complain ; it is voidable only by those who are injured. And the plaintiff may regard himself as an injured party. As to him the proceedings of the selectmen were in invitum. As to him the rule applies, that whenever, in pursuance of law, the property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law, which are made for his protection and benefit. Those provisions must be regarded as in the nature of conditions precedent, which must be complied with before the right of the property owner is- disturbed. Cooley’s Const. Lim. 528.
A case of strong necessity must exist to furnish a proper occasion for taking the plaintiff’s land against his will for the accommodation of another individual— Dudley v. Cilley, 5 N. H. 560; a necessity strong enough, very clearly, to. authorize the establishment of this highway upon public grounds and without the condition annexed.
“ Irregularities,” says Mr. Justice Bell, “ which is but another word for illegalities, in the proceedings in an action, furnish everywhere ground of exception, to the party whose rights are affected by them.” State v. Richmond, before cited. The plaintiff" had title to and was in possession of land over which the road in question was laid, and he was .clearly in a situation to take exception to the proceedings. Gurnsey v. Edwards, before cited; Holcomb v. Moore, 4 Allen 529.
But must it follow, therefore, that every individual having occasion to use a road apparently established according- to law, because so situated in the view of the public as to suggest no question of its legality, must be required to examine into the validity of the laying out of the road before he may venture’upon it?
It seems to us more in accordance with common sense, more reasonable, just, and equitable, that the party who alleges a highway to be [555]*555invalid by reason of some defect in the proceedings leading to its laying out, should establish its invalidity by proceedings instituted for that purpose; and that he should not be permitted to treat the public as trespassers for using the road in the proper and ordinary manner.
In this case, when the defendant entered upon the road he supposed he had the right to do so. He knew the selectmen had laid out the highway, and he had no reason to suppose it had not been legally established.
The authorities in this State are uniform, it is believed, to this effect, that where a judicial tribunal has jurisdiction of the subject-matter concerning which they assume to act, its judgment must stand, notwithstanding irregularities in the course of the proceeding, until reversed by the proper .tribunal. No matter how grave, serious, or fatal, even, those irregularities may be, even if to the extent of rendering the judgment wholly invalid when duly impeached, by due process for that purpose, it must stand until legally reversed by a superior legal tribunal having controlling authority in the premises. It would work manifest and great injustice if every person through whose land a highway may be opened by the selectmen or commissioners should be at liberty to prosecute (and. at the same time persecute) every innocent traveller who, using the highway for lawful purposes, thereby unconsciously finds himself caught in traps and snares set along the whole course of the route.
Counsel for the plaintiff seem to regard the case of State v. Richmond, before cited, as in conflict with the current of the authorities upon this subject, and as sustaining their position that the proceedings of the selectmen may be drawn in question collaterally, as by means of this suit, and thus impeached. But we do not so understand the matter. It is true that the dicta of Mr. Justice Bell, in State v. Richmond, go to this extent, — thát the proceedings of an inferior tribunal, when brought in question collaterally, “ may be impeached, if such tribunal has acted in a case, or against a person, or by a process or mode of proceeding, beyond its jurisdiction and not warranted by law.” But in the case before us, the selectmen clearly had jurisdiction of the subject-matter and of the parties.
All their proceedings with regard to form of process, notice, hearing,, and return, seem to have been in accordance with the forms of law ;: but the error and defect seem to have arisen by reason of a mistake-of the tribunal with regard to the exercise of their powers under the-statute.
The defect would seem to range itself under the head of irregularities, rather than as a result of action outside of and beyond the jurisdiction of the selectmen. Proctor v. Andover, before cited; Hilliard on New Trials 547-8.
The plaintiff will probably find a sufficient remedy provided- by law for his relief, unless lie has lost it by lapse of time.
Upon all these considerations, we are compelled to the conclusion that there must be Judgment on the verdict.