Wentworth v. Town of Milton

46 N.H. 448

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1866
• Status: Published

Opinion

Bellows, J.

It is clear that the easterly terminus of the highway prayed for is a point in an existing highway, and the question is, whether that point is designated with a reasonable degree of distinctness in the petition. It is there stated to be one rod and a half northeasterly of a certain marked tree standing near the intersection of this existing highway with the Branch road so called.

If this marked tree stands on, or by the side of, this existing highway, as it may, and as the terms used would seem to indicate, the point of beginning would be reached by measuring off one rod and a half from this tree, moving northeasterly, but in the direction in which that highway runs, whether it be exactly northeast, or varying a few points. In such a case it is obvious that the measurement should be upon the highway, because there is the point of beginning.

If the tree stood at a distance from the existing highway, and was itself one terminus, and the highway at a point northeasterly from the tree the other, it would then be something like the case of Clement v. Burns, 43 N. H. 614, which is cited by the defendant’s counsel. There, however, the course in the petition was southerly from the first terminus to Coehecho river, without designating any point on that river, and the laying out was on the course south, twenty-one degrees east. So, that if it had been understood that the term southerly should be construed as due south, the laying out would have been invalid.

In the case before us now, the term northeasterly may be regarded as qualified by the course of the old highway, upon the familiar principle that monuments will govern courses and distances, and therefore, if the marked tree is upon the highway, and the point to be reached is also upon the same highway, we think it quite obvious that the course of the road must govern, although it might not be exactly northeast; the term being used to determine which side of the tree the point of beginning was to be, rather than to denote its exact course.

There might, perhaps, be cases where a different view ought to be taken, as if the marked tree stood some distance from the highway, and the only designation of the place of beginning on the highway was by the course laid down; but no such state of things is shown to exist here, and from anything that now appears, we cannot say that the petition is defective.

This makes it unnecessary to consider the construction of the term northeasterly, whether it means due northeast or not; as it has been held in some cases where there was no object to direct its inclination to the east or west, as in Brandt v. Ogden, 1 Johns. Rep. 155, and Jackson v. Reeves, 3 Caines Rep. 293.

With these views the motion to dismiss is denied.