Gurnsey v. Edwards

The laying out of highways upon inducements or considerations other than the public good, is illegal. Where there is no provision of law by which the proceedings of a tribunal possessing limited and qualified powers can be reexamined, their doings may be . inquired into collaterally. But to enable a party to take such advantage, he must be in a legal position so to do. It cannot be done where he has waived his rights. Where A., upon the laying out of a highway, was a petitioner for the road, and admitted notice of the hearing, and released the land damages to which he was entitled, and the road was illegally laid, by inducements held out by him, and by his approval, — Held, that B., who subsequently acquired the title of A. to the premises over which the road was laid, could not take advantage of the illegality of the laying out, and maintain trespass for subverting the soil. In the laying of a highway over mortgaged premises, the mortgager in possession is ordinarily the proper person to be notified of the hearing, and to receive the award of damages.

Trespass, for breaking and entering the close of the plaintiff, situated in Keene, and subverting and carrying away the soil, on the 19th day of May, 1851. The defendants pleaded the general issue, with a justifi■cation, that there was a public highway in Keene, called High street, leading from Washington to Court street, part of which was through the plaintiff’s land ; that the selectmen of Keene, having limited the highway districts, on the 30th of April, delivered a warrant to Edwards, who was surveyor of the district in which High street was included, that being the place where the alleged trespass was committed, and that he entered on the highway for the purpose of repairing it and making it passable. Fuller justified under the authority of Edwards and by his directions. The plaintiff proved that on the 12th day of April, 1843, Caleb S. Graves mortgaged certain land, including the locus in quo, to Sumner Carpenter, who, on the 13th day of November, 1849, assigned the mortgage to Sumner Warren, by whom, on the 29th day of October, 1850, it was assigned to the plaintiff. Also, that on the 17th day of August, 1849, said Caleb S. Graves mortgaged the premises to the plaintiff. The plaintiff also proved that Joshua Wyman, a deputy sheriff, by deed dated November 12th, 1849, conveyed all the equity of redemption of Graves in the land to Sumner Warren, who, by deed dated on the 29th day of October, 1850, released all his interest to the plaintiff; that Caleb S. Graves, by deed dated on the 28th day of September, 1849, released all his interest to Marshall Kingman, who, by deed dated on the 25th day of October, 1850, released all his interest to .the plaintiff. The defendants contended that High street was a legally existing highway; and to prove this, they offered in evidence a petition, signed by twenty-six persons, including Fuller, the defendant, and Graves, dated on the 12th day of September, 1848, and addressed to the selectmen of Keene, representing “ that for the accommodation of the public in general, there is occasion for two new highways in said town,” one of which was the road in question. Upon this petition an order of notice was made, returnable on the 8th of November, and on the back of the petition was the following indorsement:— “ We, the undersigned, owners of the land from Washington to Court street, acknoweldge service, and release all claim for damages. Witness — L; C. Fuller, JOHN H. FULLER, A. Gurnsey. CALEB S. GRAVES. Keene, Oct. 20,1848.” The selectmen laid-out the road prayed for. The record states that the selectmen “ are of opinion that there is occasion for the new highways on the routes described in said petition;” that the first named highway should be called High street, and the other Centre street; “ said highways to be two and a half rods wide, and to be made by one or more of the petitioners, to the acceptance of the selectmen of said town of Keene.” Also, that they “ award to John H. Fuller and Caleb S. Graves, owners of the land through which said highways are laid, no damages, they having released all damages to said lands taken for said highways, as .above.” The record of the laying out bears date on the 8th day of November, 1848. The plaintiff then offered as a witness, Joshua Wyman, who was one of the selectmen who laid out the road. He testified that they laid out the road, both because they thought the public good required it, and because Graves and Fuller stated to them that if they would lay the road, the petitioners would make it, without any expense to the town; that they might have laid out the road even at the expense of the town, but the petitioners having offered to make it, they took that also into consideration. This evidence was objected to by the defendants, as incompetent, but admitted, subject to the exception. • The plaintiff contended that there was no highway legally established through the premises, and that the doings of the selectmen, relied on by the defendants, were invalid ; because— 1. Inducements were held out to them at the time, that the road should be built by one or more of the petitioners, without expense to the town, and that no claim should be made for land damages; which inducements were considered and acted upon by the selectmen. 2. The highway was not laid out for the accommodation of the public. 3. There was no notice or assessment of damages to the land owners. 4. The pretended release of Graves is uncertain, insufficient, and without consideration. 5. It was not competent for Graves to release the land damages, he having only the rights of the mortgager. The jury returned a verdict in favor of Fuller, and against Edwards, and assessed the damages at $5.00. It was agreed that judgment be rendered on the verdict against Edwards, or that the same be set .aside, and judgment rendered for him, as the opinion of the court should be on the foregoing case.