Summary
Trespass, by Moses Brown against Parker Brown, for breaking and entering the plaintiff’s close, between January 1,1869, and the date of the writ, March 13, 1869, and breaking down his fences, &c.
The defendant pleaded the general issue, and also that at the times when, &c., there was a highway over and across the plaintiff’s close upon which all the inhabitants of the State had the right to pass, subject to gates or bars to be maintained by the defendant and others ; and that the defendant, being of this State, did pass and repass over and along said highway, as he lawfully might, and that he removed a fence wrongfully erected by the plaintiff across the said highway, which obstructed the same, it being necessary to do so to enable him to pass, but doing no unnecessary damage ; which are the same trespasses described in the plaintiff’s declaration.
In another plea, the defendant sets out a right of way, by prescription, for all the inhabitants of Bow to pass across the said close of the plaintiff, subject to gates or bars.
Another plea sets up a similiar way, with some immaterial modifications.
The sixth plea sets up a private right of way in the defendant, by prescription, subject to gates or bars.
The replications traverse the existence of any such highway, or other way, as described in defendant’s several pleas : on which, issues were joined.
At the trial term, it appeared that the defendant had entered upon' and passed over the plaintiff’s close, as alleged in the declaration, and in doing so had left open the gates of the plaintiff, opening into the way described in the pleas; and the defendant offered in evidence the record of the laying out by the selectmen of Bow of a highway, for the accommodation of individuals over and across the plaintiff’s said close, subject to gates or bars. The return stated, among other things, “That the selectmen, having made a personal examination of the route proposed, and having.duly considered said petition, are of the opinion that there is occasion for a new highway on the route described in said petition : We therefore lay out the same, as follows ” (describing the line); and also stated that “ The line above described is to be the northerly line of the highway; and the highway is to be twenty feet wide, and to be made by the petitioners, and to remain a highway so long as said petitioners shall keep it in repair, and no longer. Said highway is to be subject to the maintenance of gates or bars to be erected and maintained by said petitioners.”
The plaintiff objected that this laying out was invalid, by reason of the condition above stated, and also that, in consequence of so leaving open the gates, the entrees of the defendant were unlawful.
The court, pro forma, overruled these positions; and there being no other objection to the defence, the court ordered a verdict for the defendant upon the general issue, and upon the issue upon the plea setting up a highway.
• The questions of law arising on this case were reserved for the whole court. ■
I. The road in question was laid out for the accommodation of the petitioners by the selectmen of Bow, on the 5th day of January, 1869, as appears by a copy of the record of laying out, which is made a part of the case. By sec. 12, chap. 61 of the General Statutes, it is provided that “ any highway for the accommodation of an individual may be laid out, subject to 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 way is laid out; hut no other condition shall be affixed to the said laying out, or imposed on the individual for whose benefit the laying out wees made.” By- sec. 1 of chap. 64, the damages for land, taken in cases where highways are laid out for the benefit of an individual, are to be paid by him.
But these roads, subject to gates and bars, are to be “ made ” or built, and kept in repair, by the town, the samé as other highways; and no different rule applies to them, in this respect, than such as is applicable to ordinary public highways. General Statutes, chap. 61, secs. 14 and 15 ; General Statutes, chap. 68, sec. 1; Proctor v. Andover, 42 N. H. 848. They are public highways, although subject to gates and bars. Metcalf v. Bingham, 3 N. H. 459 ; Proctor v. Andover, 42 N. H. 348.
II. The selectmen, in the case at bar, have attempted to lay out and establish a different highway from any known to the law. They have “ affixed conditions” to this laying out, which are in direct violation of the statute, to wit:
1. That the way shall be “ made by the petitioners.” 2. That the same “ shall remain a highway so long as the petitioners shall keep, the same in repair, and no longer.”
By the first condition, the building of tire way is devolved upon parties who are under no obligation to build and keep in repair. There is no way provided by which the petitioners could be compelled to “ make ” it. No indictment will lie against them for any neglect to build it. General Statutes, chap. 68, sec. 1. Nor can the town be compelled to build it, for the report of the selectmen shows that they are not to build it. It follows, therefore, as a logical result, that there has been no laying out of any road at all, and the attempt in that direction is simply and absolutely void. And the last condition involves this absurdity, that if the plaintiff, or any other individual, should suffer injury by defects in the way, the very fact that it was out of repair would preclude his right to recover ; for the moment it became out of repair, that moment it ceased to be a highway! If it be contended that these conditions may be void, and yet the laying out be well enough, we say:
III. As against this plaintiff, the laying out of this road was absolutely void. He is the party directly interested. His was the only land that was taken (and taken, too, as we say the record shows, without any regard to considerations of public utility), and he is therefore in a position to take advantage of any defect or illegality on the part of the authorities who laid out the road. However it might have been if the question had arisen between other parties, as to him it is not merely the conditions that are void, but the laying out is wholly so, and the validity of the proceedings may be called in question collaterally. Pritchard v. Atkinson, 8 N. H. 835; Dudley v. Gilley, 5 N. H. 561; Robbins v. Bridgewater, 6 N. H. 524; State v. Richmond, 26 N. H. 232. There is no disagreement, as we understand it, between the doctrine of the cases of Pritchard v. Atkinson, Dudley v. Oilley, and Robbins v. Bridgewater, and that of State v. Richmond, so far as this plaintiff is concerned. He has an “ interest in the matter,” and is thus brought within the decision of State v. Richmond. He is in a “ situation ” to take advantage of any illegality. Gurnsey v. Hdwards, 26 N. H. 229. It makes no difference in a case like this whether a certiorari does or does not lie to reverse the' proceedings of the selectmen. In State v. Richmond, 26 N. H. 236, the court say: “ Though it is true that where a certiorari does not lie to reverse or set aside a proceeding because it is not of a judicial character, such proceeding may be impeached by proof when collaterally brought in question ; yet this is equally true of the proceedings of inferior tribunals of special and limited power, though they may be beyond dispute of a judicial character, and liable to be reversed on a certiorari 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. The principiéis general, that wherever any persons assume to act under a special and limited power conferred by law, their doings may be avoided by showing that they had no jurisdiction, or that they have exceeded the limits of their authority.” But the case of Holcomb v. Moore, 4 Allen 529, is a case exactly in point, and in fact goes on all fours with the case under consideration. It was an action of trespass quare clausum. In that case, selectmen laid out a private way over plaintiff’s land, the laying out containing this condition: “ The way so laid out to be used only during the time of sleighing.” The defendant afterwards travelled upon said way, as one of the persons for whose benefit it was laid out — which is exactly the status of the plaintiff and defendant in the case at bar. The court, in giving their opinion, say : “ The right of the selectmen of towns to lay out private ways for the use of individuals * ■ * is wholly given by statute; and, unless their proceedings are authorized by the statute, they are invalid. We are not aware of any provision for the location of a way for use a portion of the year only ; much less for a way to be used only during the time of sleighing. Such a laying out of a way, being objectionable as a basis for assessing damages, and unwarranted by law, is of no validity, and the owner of land through which it is located may so treat it. In case a private or town way has been illegally located by the action of the selectmen, no certiorari is necessary to quash the proceedings, but the owner of the land may resort to his action of trespass 'against those who enter upon his land and use such way against his consent.”
XY. The record of the laying out in this case, as it seems to us, shows a total disregard of all the considerations that ought to enter into the laying out of a highway.
It was laid out for the accommodation of these petitioners alone. It was not of sufficient consequence, in the opinion of the selectmen, to warrant the throwing of the burden of “ making ” and keeping in repair upon the town. It was not to remain a highway after it got out of repair. All the considerations of “ public exigency and convenience,” and the “ rights of individuals whose lands are taken” (Dudley v. üilley), were completely ignored ; for, if it was not of sufficient necessity to warrant the making of it by the town, — if it was to remain a highway only for an indefinite period, — then the public, in the judgment of the selectmen, had no beneficial interest in it; and if such was the fact, they transcended their authority, and their action stands as a. mere bald, naked attempt to take the land of one man, against his consent, and give it to others. We do not contend that the land of one individual can never be taken to build a road for the accommodation of another, but we say that it ought not to be done in cases (as in the present) where the record of laying out utterly negatives every other consideration except the interest and benefit of such other. “ Yery clearly, the right of eminent domain does not authorize the government, even for a full compensation, to take the property of one citizen and transfer it to another, where the public is not beneficially interested in the transfer.” Angelí on Highways 65 ; Beekman v. Saratoga ¿f* Schenectady Mailroad Company, 3 Paige N. Y. C. H. 45, and numerous authorities cited in note to Angelí on Highways 65. “ Under what circumstances a highway may be laid out to accommodate an individual, has not been settled. It is however supposed that a case of strong necessity alone can furnish a proper occasion for such a highway, and justify the taking of the land of one individual against his will, for the accommodation of. another individual.” Dudley v. Gilley, 5 N. H. 560.
This difficulty in reference to the taking of private property for private purposes is perhaps obviated to some extent by the adoption of the rule that ways such as this are public highways. Metcalf v. Bingham, Proctor v. Andover, before cited.
It is only on this ground, as we apprehend, that the laying out of such ways, and the taking of private property therefor, can be sustained. In Proctor v. Andover the court say, “ the taking of land of private persons for such roads is clearly contemplated, and that is inconsistent with the idea that they are to be regarded as ways for private use.” The fact, also, that the statute throws the burden of “ making ” and keeping in repair such roads upon the town, as in the case of other highways, shows their distinctive public character, and perhaps relieves it from the objection of unconstitutionality. We contend, therefore, that it should appear at least negatively from the report, that the public, as well as the particular individual or individuals asking for the way, had some “ beneficial interest ” therein. If the report in this case had merely stated that the road was laid out for the accommodation of these petitioners, and there left it, the rights of the public might follow as inference of law which the court could pronounce. But what we complain of is, that the record of laying out excludes all idea of public interest, and, so far as the selectmen could do so, makes it one for mere “ private use,” sucli as the court in Proctor v. Andover say was not contemplated, and, by fair inference, would be unwarranted ; that it was a road of so unimportant a character, that the selectmen declined to subject the town to the expense of making it and keeping it in repair that it is so nondescript in all its features that no court ought to sustain it; and, in a word, that from all the facts disclosed by the record, it clearly appears that no such “ strong case” — to use the language of the court in Dudley v. Cilley — was made out, as would justify the selectmen in taking the plaintiff’s land for this way.
In laying out highways, the proceedings as against land owners being in invitos, the selectmen must proceed according to law, or their doings •'are illegal and void. Bobbins v. Bridgewater, 6 N. H. 524; 3 Greenl. 438. A highway laid out in pursuance of a vote of the town is illegal and void. State v. Newmarket, 20 N. H. 519. If the petitioners agree with the selectmen to withdraw their opposition, the report of commissioners will be set aside. Knowles’s Petition, 22 N. H. 361. The laying out of highways, upon any inducements not sanctioned by law, is illegal and void. Dudley v. Butler, 10 N. H. 281; Gurnsey v. Bdwards, 26 N. H. 224. A highway subject to gates or bars is a public highway, and the town is liable for any damage arising from its being out of repair. Proctor v. Andover,42 N. II. 348; Metcalf v. Bingham, 3 N. H. 459.
This highway was laid out “ as follows,”— that is, upon two express conditions, both of which were illegal, — :viz.: 1. That it should “ be made by the petitioners.” 2. That it should “ remain a highway as long-as said petitioners shall keep it in repair, and no longer ; ” and as the road could not legally be laid out in this way, it was not laid out at all. The attempt at laying out was illegal and void. General Statutes, chap. 61, sec. 12.
These conditions are of the substance of the laying out, and inseparable from it. A highway does not exist in fact until it is “ made ; ” and as the order for making it was illegal and void, it could never have had a legal existence.
Here was an attempt to constitute a highway of a kind, in a manner, and upon principles totally repugnant to our laws — a highway wholly under the control of the petitioners, to build or not to build as they saw fit, to keep in repair as long as they pleased and no longer, without any regard to the public wants, and which the town should be under no obligation to build or keep in repair. .. Such an attempt was wholly without authority of law, and was utterly void. We have no law for laying out such a highway — no law to compel the petitioners to make it or to keep it in repair.
Indeed, it seems as if the legislature could have no authority under the constitution to enact such a law, — taking private property from its owners merely for the benefit of individuals. It is to a demand for the public good and for the public use that private rights must yield, and not to private interests merely.
In this case, only two questions of law have been transferred to this court for decision; and the plaintiff’s counsel, in their briefs, have argued only one of these questions. We will consider that one first, viz.:
I. Was the laying out of the road in question invalid by reason of the clause contained in it, as stated in the case ?
(1.) By referring to the fifth edition [1866] of the Town Officer, page 173, section 24, it will be found that the objectionable portion of the. laying out in this case was copied exactly from the form there given. The same form is given in the first edition of the Town Officer, edited by the late Chief Justice Bell, page 131, and also in Chief Justice Richardson’s Town Officer, published in 1829, ’page 284. For nearly forty years this has been the only form that selectmen have had to guide» them in cases of this kind ; ánd being inserted in the several editions of the Town Officer, it has thereby received the sanction of their several editors, who have been some of the ablest lawyers that the State has had. It is evident that the selectmen, who laid out the way in question, had one of these editions of the Town Officer before them when they made the return thereof; and if they made any mistake, it resulted from relying upon what seemed to be good authority, and was a mistake of form and not of substance.
(2.) It is evident, also, that a very large proportion, to- say the least, of all the private ways that have been heretofore laid out in this State are founded upon a return similar to the one in question; and if this one fails, many of those must fail also. See Proctor v. Andover, 42 N. H. 350, for an example of a return of a private way, similar to the one in question. We are aware that the General Statutes contain a provision upon this subject that was introduced by the joint select committee of the legislature when the statutes were passed (see Com’rs’ Report, page 145, sec. 12, and Report of Joint Select Committee, page 8), and which was not contained in any previous statute. Gen’l Stat., chap. 61, sec. 12; Laws of N. H. (1797), page 309 ; ditto (1815), page 385; ditto (1830), page 573; Revised Stat., chap. 52. But no previous statute contained express or implied authority for imposing the burden of building and maintaining private ways upon the petitioners.therefor. Under previous statutes it has been uniformly held that ways of this kind, though originally laid out at the expense of the ■petitioners, are public highways, and like other highways must be maintained by the . public, and if not properly maintained, the towns are subject to the same ' liabilities as in the case of other highways. Metcalf v. Bingham, 3 N. H. 459 ; Clark v. B. O. fM. Railroad, 24 N. H. 114; Proctor, v. Andover, 42 N. H. 348; Roberts v. Stark, 47 N. H. 224. This doctrine is totally . inconsistent with the idea that the petitioners must bear these burdens, and therefore we say that the General Statutes, in the section above referred to, have not changed the law in this respect; in other words, it is but an expression of the law as it previously existed. Considering, then, the large number of private ways that must stand upon the same basis as the one in question, and the important rights of the public and individuals therein, we suggest that the court should not put forth a decision that shall pronounce these ways invalid unless the law peremptorily requires such a decision — especially, when it is further considered how these mistakes, if such they are, have occurred. (3.) The power to lay out highways, conferred by our statutes upon selectmen, is of a judicial nature. State v. Richmond, 26 N. H. 232 ; Haywood v. Charlestown, 34 N. H. 23 ; Hall v. Manchester, 39 N. H. 301; Boston ft Maine Railroad v. Folsom, 46 N. II. 64 — all, in effect, overruling Robbins v. Bridgewater, 6 N. H. 524, upon this point. If selectmen, in laying out highways, have jurisdiction of the subject-matter, and of the parties affected thereby, but, in performing their duty, they do not proceed strictly according to the course prescribed by the statutes, their judgments are not absolutely void in consequence of such informalities or irregularities, but only voidable. They are not voidable, even, by every one, but only by those whose rights and interests have been disregarded by the neglect to comply with the law. State v. Richmond, 26 N. H. 232, which is the leading case upon this subject. In this case the use of the word “ void,” in Pritchard v. Atkinson, 3 N. H. 335, Dudley v. Gilley, 5 N. H. 561, and Robbins v. Bridgewater, 6 N. H. 524, and generally by legal writers and others, is commented upon, and the different meanings of the word, as it is commonly used, are given. The authorities cited by our brethren on the other side should be examined and weighed in the light of this case. See, also, State v. Raymond, 27 N. H. 388 ; Proctor v. Andover, 42 N. H. 353 ; Clement v. Burns, 43 N. H. 609.
In the case under consideration, no question is made but that the selectmen, when they laid out the way, had' jurisdiction of the subject-matter, and of the parties affected thereby. An examination of the record of the laying out will show that no question of this kind could be made. A petition for this highway in proper form was presented to them; an order of notice was made by them thereon ; the notice required by the statute was given to the plaintiff, he being the only person over whose land the proposed highway was to pass; the selectmen met at the time and place appointed (the place being the plaintiff’s house) ; and, after examining the route and considering such evidence as was laid before them, they decided that “ there is occasion for a new highway on the route described in said petition,” and therefore to lay out the same. They were not lawyers, and were therefore obliged to rely upon others for information as to the form in which their return should be made. Therefore they had recourse to a book, published for the very purpose of informing them upon these and other subjects appertaining to their official position, and bearing the indorsement of the best legal talent of the State. They followed its instruction, and in so doing introduced an irregularity into the form of their return. No one can doubt but that this irregularity is one of form and not of substance ; but however this is, it does not affect the conclusion. From the principle of law above stated, it logically follows that the judgment of the selectmen, thus made and evidenced, is not absolutely void, but only voidable, and voidable only by those whose rights and interests have been affected thereby.
We say that the plaintiff’s rights and interests have not been affected by this irregularity or informality. His rights and interests grew out of his ownership of the land, and were subservient to the right of the public to take the land, or an easement therein, for a highway, whenever there was occasion, by indemnifying him therefor. Whenever the rights of the public are asserted in a proper manner, his rights and interests are not affected, because they are subject to that limitation. The statutes have made the selectmen judges of the occasion for a highway in cases of this kind, and of the amount of the indemnity to be furnished the land owner therefor. In this case, the selectmen, after legal notice to the plaintiff, thus furnishing him a full opportunity to be heard upon both these questions, have decided that there was occasion for a new highway, and have assessed his damages at fifteen dollars, from which decision he has taken no appeal. It cannot be reasonably claimed that the plaintiff’s damages were assessed upon any other basis than they would have been if the objectionable clause in the return had not been there. How could the selectmen know but that the petitioners would keep the road in repair as long, at least, as it would remain a highway, if it was to be kept in repair by the town ? Upon either basis they would be obliged to assess damages for a permanent way, for it might prove such ; and would be as likely to prove such in the one case as in the other ; and if in the one case it was discontinued at any time, or in the other case the petitioners failed to keep it in repair, the land owner would be the gainer to that extent. The objection to the basis for the assessment of damages that was made in the case of Holcomb v. Moore, 4 Allen 529, cited by our brethren upon the other side, does not exist in this case. Therefore we confidently submit, that the plaintiff cannot avoid the laying out of the way in question, in this case, where its validity is drawn in question collaterally.
(4.) As a scholium to the foregoing, we call the attention of the court to the well established principle of law, that “ every presumption is in favor of the regularity of the proceedings of the selectmen, and it is to be assumed that they in good faith adjudged the road to be necessary until the contrary is shown.” Proctor v. Andover, 42 N. H. 357. It will be remembered, that in that case, not only the return of the laying out was similar to the one in question, but there was evidence that the road was laid out by the selectmen as the result of a compromise between them and the petitioners. If the way there considered was not absolutely void, certainly the one here under consideration is not. See, also, Smith v. Conway, 17 N. H. 586 ; State v. Newmarket, 20 N. H. 522. ... .•
... (5.) Where a judicial tribunal has jurisdiction, its judgments remain good, notwithstanding irregularities and informalities, until reversed by the proper tribunal. White v. Landaff, 35 N. H. 130, and authorities there cited; State v. Rye, 35 N. H. 377 ; Morse v. Presby, 25 N. H. 303; State v. Wears, 38 N. H. 316 ; Clement v. Burns, 43 N. H. 614;— see, also, authorities cited in Morrison’s Digest 441, sec. 48. We think we have shown that the judicial tribunal (the selectmen) had jurisdiction in this case ; and we claim, by virtue of the principle just stated, that their judgment cannot be questioned in this collateral proceeding. The party aggrieved by any irregularity or informality in their proceedings or judgment must resort to a writ of certiorari to have the same corrected. Formerly, it was held that this writ did not lie to correct judgments of selectmen in cases of this kind. Robbins v. Bridgewater, 6 N. H. 525. But it is held otherwise now. State v. Richmond, 26 N. H. 232; Proctor v. Andover, 42 N. H. 359-360 ; Boston Maine Railroad v. Folsom, 46 N. Hi 64. Justice and equity require that the party aggrieved should be compelled to resort to this remedy, in cases where the selectmen have jurisdiction, instead of allowing him to bring an action of trespass, and in that action trying the validity of their judgments. In this case, when the defendant entered upon the way in question — for which- entry this action was brought — he believed that he had a right so to do. He knew that the selectmen had laid out the highway in question, and he supposed it was done in a lawful manner. He ought not to be subjected to damages and costs because there happens to be a defect in the proceedings of the selectmen, for which he is in no way responsible. Must every citizen, who has' occasion to use a highway, examine into its validity before he ventures upon it ? Is it not more reasonable, just, and equitable, that the party who alleges a highway to 'be invalid by reason of irregularities and informalities in the proceedings of the selectmen in laying it out, should establish that fact by the judgment of a proper tribunal, upon proceedings had for that purpose, before the citizens composing the public shall be regarded as trespassers for passing over it ? In such proceedings the irregularities and informalities are the subjects in issue, and all the facts relating to them can be fully investigated and considered, and exact justice can be done to all parties, without punishing those who are guilty of no intentional wrong. They cannot be as fully investigated and considered collaterally; and if, upon such investigation and consideration as can be given to them in collateral proceedings, it is held that they invalidate the highway, innocent persons are made to suffer.
The judgments of other tribunals having jurisdiction of the subject-matter and parties stand until they are reversed or set aside in this manner. Why should not those of selectmen ? Why not have a uniform rule upon this subject, applicable to all judicial tribunals ? But counsel (Minot, Tappan & Mugridge) maintain, in their brief'(page 541), that State v. Richmond is an authority in conflict with this position. The court in that case say, that 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.” In this case, we claim that the selectmen had jurisdiction in all these particulars. They certainly had jurisdiction of the subject-matter of the case, and of the plaintiff, having caused him to be legally notified of their proceedings. A petition in writing in legal form was presented to them at the outset, which is the “ process” prescribed bylaw; and they gave'notice of their hearing thereupon, had their hearing,-heard evidence, examined the route, made a return, &c., which is the “ mode Of proceeding” prescribed by law and above alluded to. They did not exceed the limits of their authority in any of these particulars. Whatever defect exists in this case ranges itself under the head of “ irregularities.” See Proctor v. Andover, 42 N. EL 859 and 860. Our brethren also cite Holcomb v. Moore, 4 Allen 529, as “ a case exactly in point.” We have already alluded to this case in another connection. In Massachusetts, town and private ways are not laid out by the selectmen, as in this State, but the selectmen are required to make a report of the laying out thereof to the town, at a town-meeting warned and notified for that purpose; and the way is not established until the report of the laying out by the selectmen is accepted and allowed at such a meeting, except in certain cases not material to be considered here. Mass. Gen’l Stat., chap. 43,-secs. 59 and 65. The way, in Holcomb v. Moore,, must have been laid out in this manner. It is held in' that State that certiorari does not lie to correct such proceedings, and that the only way to examine into their validity is by collateral proceedings. Bobbins v. Lexington, 8 Cush. 292. The court iq, that case acknowledge the force of the argument, that considerations of policy and convenience require that a writ of certiorari should be resorted to-instead of collateral proceedings in cases of this kind; but they say the practice in that State has always been otherwise, and they yield to it. In this State a different practice has been established, in the case of Bailroo/l v. Folsom and other cases above cited; and we submit that the argument alluded to should control. When the difference in the statutes and the policy of the law upon this subject, in - Massachusetts and this State, is considered, the case of Holcomb v. Moore has no weight in this State.
(6.) If the plaintiff was in a position in this case that would enable him to take advantage of the alleged, defect in the laying out of the highway in question, and the court could consider his objection in this collateral proceeding, still we claim that the defect does not render the laying out illegal and invalid. The selectmen expressly find that “ there is occasion for a new highway on the route described in the petition,” and they therefore lay it out. As we have said before, it will be presumed that they rightly so found unless the contrary is clearly and explicitly proved. Proctor v. Andover, above cited; — see, also, Parles v. Boston, 8 Pick. 218. No evidence is offered to show that they so found from any other consideration than that of the public necessity and convenience. . Shaw, O. J.,says, in Oopeland v. Packard, 16 Pick. 221, that “ it is obvious that this consideration, — namely, at whose cost a highway is to be made (and we add, tobe kept in repair), — can have no bearing upon the separate and distinct question whether such way be of common convenience or necessity.” The objectionable clause in controversy does not show or tend to show that the selectmen found that there was occasion for a new highway, from any other consideration than that of public necessity and convenience. This clause is separate and distinct from the other; and if it is not authorized by law, or is expressly prohibited by sec. 12, chap. 61, of the General Statutes, it may be considered void without impairing the rest of the laying out. Cheshire Turnpike v. Stevens, 10 N. H. 137 ; Patten’s Petition, 16 N. H. 278 ; State v. Rye, 35 N. H. 376, — where it is held that that part of the commissioners’ report fixing a time within which the highway shall be built is superfluous, and may be erased or not, — Harrington v. Harrington, 1 Met. 404, a case very similar to the one under consideration. In that case, the acceptance by the town of the report of their selectmen upon the way in question was “on the following conditions, to wit, that the said Daniel Harrington, 2d, shall build the said road and pay all the expenses of the same, and defend the town against all prosecutions.” The court (Shaw, O. J.) say that “ all the conditions, except that of paying the damages for land as part of the expenses, were in their nature conditions subsequent. The effect of a condition subsequent is not to prevent the act to which it is annexed from taking present effect; but it may defeat it aftérwards, or be attended with other legal consequences. It is obvious, therefore, that the operation of such a vote was to give immediate effect to the act of the selectmen and affirm the location of the way. If the condition was contrary to law, then the condition alone was void, and the vote would stand as if it ivere absolute and unconditional.” See, also, Commomvealth v. Weiher, 3 Met. 445, where it is said that the execution of an authority may be good in part, and bad in part, and that in such case it will be void only as to the excess: and 4 Kent’s Com., 346, 386, and Adams v. Adams, Cowp. 651, are there cited to this point. This case, and the principle above stated, are cited with approval in Proctor v. Andover, 42 N. H. 355-6 ; Commonwealth v. Carpenter, 3 Mass. 268; Commonwealth v. Blue Hill Turnpike, 5 Mass. 420 ; Commonwealth v. Derby, 13 Mass. 433 ; Commonwealth v. West Boston Bridge, 13 Pick. 195; Hopkinton v. Smith, 15 N. H. 155; Dudley v. Cilley, 5 N. H. 558, where it was held that the condition imposed by the court was void, not the laying out. Crowell v. Hopkinton, 45 N. H. 9.
II. The other question transferred is, whether the defendant is liable in this action in consequence of leaving open the gates opening into the way as he entered upon it. As the plaintiff’s counsel have not made any suggestions upon this point, we infer that they have abandoned it. However that may be, it is clear that the defendant cannot be liable in this action of trespass for leaving open the gates. This was an omission of duty, and not a commission of á wrong, "on the" part of the defendant; and if he is liable therefor at all, it must be in an action of case and not in an action of trespass. Fellows v. Brown, 42 N. H. 364 ; Hinks v. Hinks, 46 Maine 423. This proposition is too plain to require the citation of authorities, or further argument.
It does not alter the case to call the power of selectmen “judicial.” They have certain discretionary authority within their jurisdiction, consisting mainly in judging whether the public necessity requires the highway; and so far their authority may be called “judicial.” If they commit an error in the exercise of this discretion, there is no remedy. In this sense their acts are “ judicial,” and in no other. But their authority or jurisdiction is one of the most limited kind. If they travel out of it, their acts are utterly void, — as, if they proceed without a petition — Eames v. Northumberland, 44 N. H. 67; Haywood v. Charles-town, 34 N. H. 23; or upon an invalid petition— Clement v. Burns, 43 N. H. 614, 615; or where the highway is part of one extending into another town — Griffin’s Petition, 27 N. H. 343 ; or where the petition does not state facts sufficient to give jurisdiction — Binsmore v. Auburn, 26 N. H. 356 ; or by reason of improper inducements — State v. Newmarket, 20 N. II. 519; or where their acts in any respect are not authorized by law — State v. Richmond, 26 N. H. 239,240 ; Gurnsey v. Edwards, 26 N. H. 230; — and “ everything will be presumed to be without their jurisdiction, which does not distinctly appear by the record to be within it.” Haywood v. Charlestown, 34 N. II. 26, 27, citing Morse v. Bresby, 25 N. H. 302.
It is suggested that this plaintiff is not in a position, or that .this is not the proper way, to take exception to this laying out. If this plaintiff cannot make the objection, no one could. He is the only land owner interested. The way goes its whole length over his farm, and the year for taking an appeal has expired without his taking an appeal.
It has never been held in any case that this is not the proper mode of taking the exception. Indeed, every decision tin this State goes upon tlie ground that this is the proper mode. In Railroad v. Eolsom it is only held that in proper cases a certiorari will lie, — not that it is necessary in any case, much less in such a case as this. In State v. Richmond, 26 N. H. 247, the decision goes upon the ground that the exception would have been effectual if it had been taken in season. State v. Newmarket, 20 N. H. 519.
But cannot the court come to the defendant’s aid- by cutting off, eliminating, expunging, and excoriating the unlawful parts of this transaction, and leaving a highway new, perfect, and entire — lopping off these upas branches, and leaving a symmetrical olive-tree ? We believe that this cannot be done; that the thing must be taken as it is, not as it should have been. The metamorphosis cannot be made.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
