Bryant v. Tamworth

39 A. 431, 68 N.H. 483

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1896
• Status: Published

Opinion

Blodgett, J.

The plaintiffs have no case. If the laying out of the highway in 1852, subject to gates, was legal, no' error appears in the finding of the commissioners that there is no occasion to remove the gates ; and if the laying out was illegal, the finding is in no wise affected, because the highway long since became a legal one by user. P. S., e. 67, s. 1. But suppose it did not, the plaintiffs stand no better; for if it be assumed, in accordance with their contention, that the imposition of the gates was illegal and that their maintenance has.since been and now is an unlawful obstruction to the travel on the highway, their remedy is by indictment. P. S., c. 77, s. 8. Then, again, it is beyond doubt or disputation that the laying of the highway by the selectmen, in the exercise of a judicial power conferred on them by the statute of highways, cannot be impeached or set aside in this collateral proceeding. Spaulding v. Groton, ante, p. 77, and authorities cited.

Exception overruled.

Clark, J., did not sit: the others concurred.