Fowler, J.
By the statutes of this State, as they existed prior to the passage of acts at the last session of the Legislature, selectmen had original jurisdiction of the laying out of new highways within their respective towns, and the court of Common Pleas of the laying out of all highways extending into two or more towns. Revised Statutes, ch. 49, sec. 1; ch. 50, sec. 1; Comp. Laws 134, 137; Sumner’s Petition, 14 N. H. 268; Griffin’s Petition, 27 N. H. 343.
[72]*72The petition in the present case, having asked for the laying out of a new highway in two towns, was primarily within the jurisdiction of the court of Common Pleas, and was by them properly referred to the county commissioners. Stevens v. Goffstown, 21 N. H. 458; Sumner’s Petition, 14 N. H. 268; Hopkinton v. Winship, 35 N. H. 209.
The commissioners had authority to lay out a new highway partly over an existing highway. Rev. Stat., ch. 49, sec. 9; ch. 51, sec. 3; Raymond v. Griffin, 23 N. H. 341; State v. Boscawen, 28 N. H. 222; Hopkinton v. Winship, 35 N. H. 209.
As the petition asked for a highway in two towns, it could only appear from the action of the commissioners, and their report, that the court of Common Pleas had not ultimately jurisdiction, for the reason that the public good required the construction of a new highway in one town only. IJpon that point the report of the commissioners must be regarded as conclusive. Hampstead’s Petition, 19 N. H. 347; Hopkinton v. Winship, 35 N. H. 209.
The want of jurisdiction in any tribunal renders its proceedings void; State v. Richmond, 26 N. H. 240; and when the want of jurisdiction is shown by the record and proceedings themselves, it may be taken advantage of at any time. Griffin’s Petition, 27 N. H. 343; Hopkinton v. Winship, 35 N. H. 209.
Upon the coming in of the commissioners’ report in the case now before us, the objection was substantially taken that it appeared from the report itself that no new highway was actually needed, or had in fact been laid out by the commissioners in the town of Croydon. If this were so, the objection was fatal, and should have prevailed to induce the court to reject the report and dismiss the petition. If the report showed that, in the judgment of the commissioners, no new highway was needed for the public accommodation except in Newport, and that, consequently, none had been actually laid out in Croydon, it [73]*73was conclusive, that, in the opinion of the commissioners, the petition should have been presented to the selectmen of Newport alone, and that it was an evasion of the statute, and a fraud upon the law, to give the court of Common Pleas jurisdiction in the first instance, by asking for a new highway in two towns, when the public necessity only required its construction in a single town. Sumner’s Petition, 14 N. H. 268; Hopkinton v. Winship, 35 N. H. 209.
We think it quite clear, from the report of the commissioners themselves, taking the whole of it together, that in their judgment the public good did not actually require any new road in Croydon, and that they have not in fact and in substance laid out or provided for the construction of any new highway in that town. What are the facts on this point, as shown by the report itself ? Why, simply that the commissioners ran over an old highway in Croydon for the distance of 149 rods and 10 links, before reaching Newport line, and then continued to run farther over the same old highway, 455 rods and 15 links, in Newport, before commencing to lay out any highway upon new ground; thus making a distance of 605 rods, or nearly two miles, through which the commissioners followed an old road from the northern terminus of the route petitioned for, before commencing to lay out any new highway ; almost a mile and a half of this distance, too, being in the town of Newport. The commissioners also state in their report, in pursuance of the requirements of the statute [Rev. Stat., ch. 51, sec. 6 ; Comp. Laws 140,] that they “ adjudge that it is inexpedient to make any alteration in the grading or constructing” of any portion of the old highway for this whole distance of 605 rods, and they therefore make no estimate of any expenses to be incurred by either town on account of it. It further appears that only nominal damages of one cent to each of six landowners for this entire distance was awarded- by the commissioners ; four cents to land-owners in Croydon, and two [74]*74cents to those in Newport; making the whole burden in any way imposed, or required by the public exigencies to be imposed, upon the towns of Croydon and Newport for an extent of nearly two miles of new highway, the nominal sum of six cents. Nothing could more satisfactorily and forcibly demonstrate the perfectly nominal character of the pretended laying out of two miles of new public highway. Yet, without this whole extent of nominally new highway, the report of the commissioners would show conclusively that the court of Common Pleas had no jurisdiction of the subject matter of their action. Strike out from the report what upon its very face, and in the solemnly declared judgment of the commissioners themselves, is clearly and palpably nominal and formal, and the new highway commences at an old highway in Newport, nearly a mile and a half from the line of Croydon, and then extends on into Newport, constantly receding farther and farther from the town of Croydon.
It is worthy of remark, that the commissioners have used different phraseology in describing the new highway, as reported to have been laid out by them through the 605 rods to which we have just referred, from that employed by them in setting forth the laying out of other portions of the route. In passing from stake No. 1 to stake No. 23 they uniformly say that they laid out the new highway over an old highway and on lands of individuals named, while they invariably describe the actually new highway established by them as being laid out over the lands of the individuals specified ; and in two instances, in other portions of the route, they describe the new highway as laid out over an existing highway, without mentioning the existence of any land-owners. Whatever may have been the design of this difference in phraseology, and whether or not it was purely accidental, we think it quite clear, that, when the commissioners say they laid out a new highway over an existing highway, and on land [75]*75of individuals, and at the same time award no land damages to those individuals, and expressly adjudge it to ho unnecessary to make any alteration in the grade or construction of the old highway, it can only be understood that a new highway was intended to be established over an old highway constructed upon land the fee in the soil of which belonged to, the individuals named, and not that any additional land of those individuals, not before set apart for public use, had been appropriated to that object.
It has been urged by the counsel for the original petitioners that the court below and this court are precluded from finding and holding the laying out of a new highway in Croydon to be merely nominal and formal, by the averment of the commissioners in one part of their report that they have laid out such new highway, however conclusively the nominal and formal character of the laying out may appear from the whole report taken together. This position seems to us utterly untenable.
Free access — add to your briefcase to read the full text and ask questions with AI
Fowler, J.
By the statutes of this State, as they existed prior to the passage of acts at the last session of the Legislature, selectmen had original jurisdiction of the laying out of new highways within their respective towns, and the court of Common Pleas of the laying out of all highways extending into two or more towns. Revised Statutes, ch. 49, sec. 1; ch. 50, sec. 1; Comp. Laws 134, 137; Sumner’s Petition, 14 N. H. 268; Griffin’s Petition, 27 N. H. 343.
[72]*72The petition in the present case, having asked for the laying out of a new highway in two towns, was primarily within the jurisdiction of the court of Common Pleas, and was by them properly referred to the county commissioners. Stevens v. Goffstown, 21 N. H. 458; Sumner’s Petition, 14 N. H. 268; Hopkinton v. Winship, 35 N. H. 209.
The commissioners had authority to lay out a new highway partly over an existing highway. Rev. Stat., ch. 49, sec. 9; ch. 51, sec. 3; Raymond v. Griffin, 23 N. H. 341; State v. Boscawen, 28 N. H. 222; Hopkinton v. Winship, 35 N. H. 209.
As the petition asked for a highway in two towns, it could only appear from the action of the commissioners, and their report, that the court of Common Pleas had not ultimately jurisdiction, for the reason that the public good required the construction of a new highway in one town only. IJpon that point the report of the commissioners must be regarded as conclusive. Hampstead’s Petition, 19 N. H. 347; Hopkinton v. Winship, 35 N. H. 209.
The want of jurisdiction in any tribunal renders its proceedings void; State v. Richmond, 26 N. H. 240; and when the want of jurisdiction is shown by the record and proceedings themselves, it may be taken advantage of at any time. Griffin’s Petition, 27 N. H. 343; Hopkinton v. Winship, 35 N. H. 209.
Upon the coming in of the commissioners’ report in the case now before us, the objection was substantially taken that it appeared from the report itself that no new highway was actually needed, or had in fact been laid out by the commissioners in the town of Croydon. If this were so, the objection was fatal, and should have prevailed to induce the court to reject the report and dismiss the petition. If the report showed that, in the judgment of the commissioners, no new highway was needed for the public accommodation except in Newport, and that, consequently, none had been actually laid out in Croydon, it [73]*73was conclusive, that, in the opinion of the commissioners, the petition should have been presented to the selectmen of Newport alone, and that it was an evasion of the statute, and a fraud upon the law, to give the court of Common Pleas jurisdiction in the first instance, by asking for a new highway in two towns, when the public necessity only required its construction in a single town. Sumner’s Petition, 14 N. H. 268; Hopkinton v. Winship, 35 N. H. 209.
We think it quite clear, from the report of the commissioners themselves, taking the whole of it together, that in their judgment the public good did not actually require any new road in Croydon, and that they have not in fact and in substance laid out or provided for the construction of any new highway in that town. What are the facts on this point, as shown by the report itself ? Why, simply that the commissioners ran over an old highway in Croydon for the distance of 149 rods and 10 links, before reaching Newport line, and then continued to run farther over the same old highway, 455 rods and 15 links, in Newport, before commencing to lay out any highway upon new ground; thus making a distance of 605 rods, or nearly two miles, through which the commissioners followed an old road from the northern terminus of the route petitioned for, before commencing to lay out any new highway ; almost a mile and a half of this distance, too, being in the town of Newport. The commissioners also state in their report, in pursuance of the requirements of the statute [Rev. Stat., ch. 51, sec. 6 ; Comp. Laws 140,] that they “ adjudge that it is inexpedient to make any alteration in the grading or constructing” of any portion of the old highway for this whole distance of 605 rods, and they therefore make no estimate of any expenses to be incurred by either town on account of it. It further appears that only nominal damages of one cent to each of six landowners for this entire distance was awarded- by the commissioners ; four cents to land-owners in Croydon, and two [74]*74cents to those in Newport; making the whole burden in any way imposed, or required by the public exigencies to be imposed, upon the towns of Croydon and Newport for an extent of nearly two miles of new highway, the nominal sum of six cents. Nothing could more satisfactorily and forcibly demonstrate the perfectly nominal character of the pretended laying out of two miles of new public highway. Yet, without this whole extent of nominally new highway, the report of the commissioners would show conclusively that the court of Common Pleas had no jurisdiction of the subject matter of their action. Strike out from the report what upon its very face, and in the solemnly declared judgment of the commissioners themselves, is clearly and palpably nominal and formal, and the new highway commences at an old highway in Newport, nearly a mile and a half from the line of Croydon, and then extends on into Newport, constantly receding farther and farther from the town of Croydon.
It is worthy of remark, that the commissioners have used different phraseology in describing the new highway, as reported to have been laid out by them through the 605 rods to which we have just referred, from that employed by them in setting forth the laying out of other portions of the route. In passing from stake No. 1 to stake No. 23 they uniformly say that they laid out the new highway over an old highway and on lands of individuals named, while they invariably describe the actually new highway established by them as being laid out over the lands of the individuals specified ; and in two instances, in other portions of the route, they describe the new highway as laid out over an existing highway, without mentioning the existence of any land-owners. Whatever may have been the design of this difference in phraseology, and whether or not it was purely accidental, we think it quite clear, that, when the commissioners say they laid out a new highway over an existing highway, and on land [75]*75of individuals, and at the same time award no land damages to those individuals, and expressly adjudge it to ho unnecessary to make any alteration in the grade or construction of the old highway, it can only be understood that a new highway was intended to be established over an old highway constructed upon land the fee in the soil of which belonged to, the individuals named, and not that any additional land of those individuals, not before set apart for public use, had been appropriated to that object.
It has been urged by the counsel for the original petitioners that the court below and this court are precluded from finding and holding the laying out of a new highway in Croydon to be merely nominal and formal, by the averment of the commissioners in one part of their report that they have laid out such new highway, however conclusively the nominal and formal character of the laying out may appear from the whole report taken together. This position seems to us utterly untenable. Suppose commissioners, upon a petition for a new highway in two or more towns, instead of actually laying out any portion of new road, should undertake to establish a new highway through the entire route petitioned for, by running a line as its centre over old highways from one terminus to the other, awarding nominal damages of one cent to each of the several land-owners, and, in addition, should expressly adjudicate that no alteration whatever in the grade, width or construction of the old highways was necessary to be made, or any expense whatever to be incurred by either of the towns through which the alleged new highway was thus established, would it be contended that such a purely nominal laying out must be conclusive, and that its nominal and evasive character, so apparent from the whole repoi't, could not be successfully uxged ? Yet such a laying out would differ in no essential particulars from the alleged laying out ixx Croydon, as shown by the repox’t before us.
[76]*76Not only had Newport a right to object to such an evasion of the true intent and meaning of the provisions of the statutes, as would be sanctioned by the acceptance of the report in the present case, but the county of Sullivan as well.
Under existing laws, Newport would have been entitled, if the new highway actually intended to be established by the commissiohers had been asked for, and the selectmen had refused to lay it, upon reference of the matter to the commissioners, if they had decided to lay it, to have required the judgment of those commissioners as to whether or not Croydon should bear a part of the burden of its construction ; and if, in the judgment of the commissioners, Newport would have been excessively burdened by the expense of constructing and maintaining the proposed road, and Croydon and its citizens were to be greatly benefitted thereby, it would have been their duty to have imposed a portion of the expense of its construction upon Croydon. By extending the road into both towns in the petition, and the nominal laying out of 605 rods of new highway over an old one, from the northern terminus of the route petitioned for to the commencement of the actual new road in Newport, if this course be permitted to receive the sanction of the court, not only would Newport be deprived of the privilege of having her own selectmen pass upon the necessity of all new roads within her borders, in the first instance, but be effectually prohibited from asking, as well as the commissioners from granting, that some portion of the expense of constructing an expensive road should be imposed upon Croydon. Laws of 1850, ch. 958; Comp. Laws 141; Sanborn’s Petition, 38 N. H. 71.
So, too, the costs of all proceedings before the commissioners, in laying out highways extending into two or more towns, are to be paid by the county; whereas, if the road he only necessary in a single town, and her [77]*77selectmen on petition neglect or refuse to lay it out, and it is afterwards laid by the commissioners, the town pays the entire costs of tbe proceedings, instead of the county. Rev. Stat., ch. 52. sec. 9; Comp. Stat. 148.
In every view of the question we feel compelled, therefore, to hold, that the report in this case should have been set aside, on the ground that it was apparent from the report itself that the court of Common Pleas had no authority to accept it, there having been no substantial and actual laying out of any new highway except in the single town of Newport, and. the court of Common Pleas having no original jurisdiction to establish a new highway wholly within the limits of a single town.
It is not to be presumed that there could have been any intention on the part of the commissioners, in the case before us, to evade the provisions of the law by a nominal and formal laying out of a new highway in Croydon; indeed, they seem to have carefully stated, fully and particularly, all the facts and circumstances going to show the completely nominal character of that part of their proceedings, as if with a view of having its validity tested.
A writ of certiorari must be awarded, to quash the judgment in the court below.
Certiorari awarded.