State v. Gilmanton

Gilchrist, J.

The case finds that in the year 1834, a committee appointed by the court of common pleas, made a report in favor of laying out a road from a certain point in the town of Gilmanton, to “the Bay meeting-house” in Sanbornton. This report was accepted by the court. The town now excepts to the competency of the report as evidence on the trial of this indictment, on account of certain alleged variances between the petition for the road and the report.

When a report is presented to the court of common pleas for acceptance, the judgment of the court is, either that it be accepted and the road established, that it be rejected for some reason which shows that all the proceedings are invalid, or that it be re-committed to the committee for the purpose of rectifying some mistake, or of calling the parties again before them for some sufficient reason. All exceptions which may be obviated by a re-commitment, should be taken upon the presentment of the report. But without discussing the proper course to be pursued in such cases, or laying down any general*rules, it is sufficient to say that exceptions like the present are made at too late a day. The judgment of the court accepting the report and establishing the road, cannot be impeached in this collateral manner. If the judgment be erroneous, there is another mode known to the law, in which the errors may be examined, and the judgment reversed ; and in this case the exceptions must be overruled.

*475 The counsel for the defendant also contends that it is a question of fact for the jury, whether the road described in the indictment be the road laid out by the report of the committee. He alleges that there is a variance between them, and that whether there be a variance, is a question to be submitted to the jury. This matter, if there be any material dispute about it, if it be not sufficiently clear by a comparison of the descriptions, should undoubtedly be submitted to ■the jury. But where upon inspection of the report it appears distinctly that the road described in the indictment is the ■road laid out, it is not the mere allegation of the counsel that there is a variance, which calls upon the court to submit ■the question formally to the jury. A slight examination of ■this point will show that here is no variance.

One of the courses in the report brings the road to “ the N. E. corner of the bridge; thence north 27° west, over said bridge.” The road laid out is considerably longer than that mentioned in the indictment, the latter extending only ■about half a mile, while the former is nearly three hundred ■rods long, as appears from the distances given in the report. Thus only a part of the road laid out is indicted. The road laid out begins in Gilmanton, and runs “over the bridge” to ■Sanbornton, and its general course is south-west. The road ■indicted begins at the centre of the new bridge, and runs a north-easterly course to its other terminus, without giving the courses and distances. There is a difference in the general course of the two roads, because they start from different points, and this makes an apparent, but no real variance. But the counsel contends that if the report establishes any road, it is at the right hand of the bridge, and not where the indictment alleges it. One course in the report brings the road to the north-east corner of the bridge, and then over ■the bridge. But it makes the line described, the westerly ■line of the highway. The road, therefore, is easterly of this line, of course, and is thus enabled to cross the bridge, and the road indicted begins at the centre of the bridge. *476 All that the state need show is, that the road indicted is included in the description in the report, and that sufficiently appears from the only piece of evidence introduced. We think, therefore, that there was no variance, and that the town has no reason to complain, because the matter was not formally presented to the jury.

With these views of the case, it does not seem material to inquire whether the instruction of the court were correct, that if the road made was intended as a substitute for the road described in the report, though it might vary somewhat from it, as it was of public utility, the town were bound to keep it in repair. If, however, a town should substitute another road for the road laid out by a committee, and should then be indicted for not keeping the substituted road in repair, it might be a question whether they could defend against an indictment by showing that the road they had made and substituted was not in the place whore the committee had located a road. And their right to make such defence would be still doubtful, if the road they had made had been accepted by those who had legal authority to accept a dedication on behalf of the public. Hopkins vs. Crombie, 4 N. H. Rep. 520 .

But the main question in the case is, whether the water over which the bridge was built is or is not a river. The charge of the court was, that if there were a regular, steady, and perceptible current, however small, it matters not what was the width of the water, or what it had been called, it was a river. This instruction must of course be taken in connection with the subject matter to which it related. The definition would not be applicable to all bodies of water in which there might be a current. A sheet of water in which there is a current from its head towards its outlet, is not, therefore, a river. The outlet of a lake may be a river, but the lake does not lose its distinctive character, because there is a current in it for a certain distance tending towards the putlet. These waters in question lie below the outlet of *477 lake Winnipiseogee, and the geography of the country informs us that they empty into the Pemigewasset river, and they are formed by the expansion of the Winnipiseogee river and other smaller streams. Now as the fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake, so the fact that a river swells out into broad, pond-like sheets, with a current, .does not make that a lake which would otherwise be a river. Where it is admitted, or certainly not denied, as in the present case, that the water is not a lake, nor a pond, the material difference between which is in size, the only criterion by which to determine whether it is a river, is the existence of a current. This question cannot be determined by ascertaining what appellations have been given to it. The name cannot alter the thing ; it cannot be received as a proper definition of the character of the water. This may be called Sanbornton bay, or the straits of Gibraltar, but still it may he a river. Sanbornton bay is a local appellation, which conveniently enough points out the particular water of which a person may be speaking : but this water is clearly not a bay, and cannot be called so with any attention to geographical correctness. A bay is a bending or curving of the shore .of the sea or of a lake, and is derived from an Anglo Saxon word signifying to bow or bend. For a similar reason the word bay is in Latin termed sinus, which expresses a curvature or recess in the coast. As a matter of convenience, wo may apply to water that name to which custom has familiarized us ; but when it becomes necessary to determine what a particular body of water actually is, we cannot disregard the etymology of the term used to designate it.

Now the word river is derived from the Latin word rivus, which again is derived from a Greek verb, signifying to flow. T.11 the classic authors it is used in a sense implying a current, a flowing of water from one point to another. “ Rivorum a, fonie deductio,” “ rivos dedneere,” 11 tenuis fugiens per gram,ina rivus," are examples of the mode of its use by *478 Cicero and "Virgil. Webster defines a river to be “ a large stream” (which implies a current) “ of water flowing in a channel.” Johnson calls it “a land current of water ;” and in Rees’ Encyclopaedia it is defined to be “ a current of water.” Richardson, the most learned and satisfactory of modern English lexicographers, defines a river to be “ a flood or flowing course ; a current; a stream of water;” and this definition expresses what we mean ordinarily, when we speak of a river. It is intimated in The State vs. Gilmanton, 9 N. H. Rep. 461 , that a current would indicate that the water at that place is a river ; and the opinion of the court is, that the instruction was correct.

It is contended that the town is not bound to maintain this bridge, because the water is navigable, and the town extends only to the shore, and not to the centre of the water. The question whether the water be a river or not, is important only upon the ground that if it be a river, the town, as it extends to the river, is bounded by the centre of the stream, whereas if it strikes any large body of standing water, by whatever name it is called, it is bounded by the water’s edge. The State vs. Gilmanton, 9 N. H. Rep. 461 . As to the navigableness of this river, the act of July 2, 1838, provides that no bridge shall be constructed across streams above tide water, which may be navigable for boats, rafts, or logs, so as to prevent the navigation or use of such streams for those purposes. See, also, Rev. St. 119, $ 10. And this provision has this effect upon bridges erected previous to its enactment, that a town could not be indicted and fined for neglecting to keep a bridge in repair, if it impeded the navigation of a river in the manner intended to be prohibited by the statute. The common law considers all rivers where the tide does not ebb and flow, as inland rivers, not navigable. Scott vs. Willson, 3 N. H. Rep. 321 . But rivers not navigable, in the common law sense of that term, (it is said in that case,) may, by usage, become public highways. In Shaw vs. Crawford, 10 Johns. 236 , the Battenkill river *479 was held to be a public highway, as it had been used for rafting for twenty-six years and upwards; and it was said by the court that when a river is so far navigable as to be of public use in the transportation of property, the public claim to such navigation ought to be liberally supported. The free use of waters, which can be made subservient to commerce, has, by the general consent of mankind, been considered as a thing of common right. It is said by Lord Hale, De jure mans, Hargrave’s Ed. 8 & 9, “ there be other rivers as well fresh as salt, that are of common or public use for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and re-flow, or not, are prima facie, publici juris, common highways for a man or goods, or both, from one inland town to another.” In the case of The People vs. Platt, 17 Johns. 211 , the distinguishing test between those rivers which are entirely private property, and those which are private property subject to the public use and enjoyment, is said to consist in the fact whether they are susceptible or not. of use as a common highway for the public. And this distinction is recognized in the Canal Commissioners vs. The People, 5 Wend. 423 .

But it is unnecessary to make a farther investigation into the cases, for the most liberal regard to the rights of the public, would not authorize us to declare that this river is navigable in any sense of the word, which would prohibit the erection of a bridge across it. Even if its being capable of being navigated by rafts should be held sufficient to make it navigable, it does not appear that this bridge would impede such a navigation. The case finds only that it is navigable by rafts. Now a raft may be made by lashing together two pieces of plank; and the word comprehends not only this, but a floating structure of timber of great value and extent. Of the numerous varieties of rafts, what description could be transported here, does not appear. The mere depth of the water is no criterion, for, although it is from five to twenty-seven feet deep at the bridge, it does not follow that *480 it could be used for the purposes of commerce. But there is another important consideration. It does not appear that the river was ever used by the public for the purpose of a highway. This is the surest test, and is the one relied on in the cases before referred to. There is no evidence that a raft or boat ever floated upon its waters. And it certainly was not the intention of the act of 1838, or of the revised statutes, to prohibit the erection of a bridge, where, judging of the future by the past, no navigation would ever exist, upon the ground merely, that the river might be navigated, possibly, at some indefinite period hereafter.

The grounds of the sixth exception taken in the argument, are not stated, and the case referred to, Commonwealth vs. North Brookfield, 8 Pick. 483 , merely decides that an indictment, stating that a certain fart of a highway was out of repair, was defective, because it did not allege in which of two towns the unrepaired part was situated.

The seventh exception is included in the remarks we have already made concerning the appellations which have been given to the water.

Judgment on the verdict.