From Casetext: Smarter Legal Research

Morse v. Wheeler

Supreme Court of New Hampshire Cheshire
Dec 1, 1897
45 A. 561 (N.H. 1897)

Opinion

Decided December, 1897.

The laying out of a highway by selectmen is vacated by an appeal; and during the pendency thereof, one who travels the way is liable to the landowner in an action of trespass.

TRESPASS, quare clausum. Facts found by a referee. The defendant petitioned for a highway which was laid out by the selectmen over lands of the plaintiffs. From the laying out each plaintiff appealed. The trespass complained of in each case consisted in opening and traveling the way during the pendency of the appeal which, at the hearing before the county commissioners, was abandoned. The court ordered judgment on the report for the plaintiffs, and the defendant excepted.

Batchelder Faulkner, for the plaintiffs.

Hiram Blake and Don H. Woodward, for the defendant.


The laying out of a highway by the selectmen is vacated by an appeal. P.S., c. 68, ss. 2, 8; Wallace v. Brown, 25 N.H. 216, 220, 221; Stalbird v. Beattie, 36 N.H. 455, 456. If the law were otherwise, it might in some cases make the right of appeal practically useless to the landowner, and in all cases where the road is not finally established, might compel towns to pay damages to the landowner and perhaps other expenses, without any corresponding benefit to the public.

Exception overruled.

PARSONS, J., did not sit: the others concurred.


Summaries of

Morse v. Wheeler

Supreme Court of New Hampshire Cheshire
Dec 1, 1897
45 A. 561 (N.H. 1897)
Case details for

Morse v. Wheeler

Case Details

Full title:MORSE v. WHEELER. HERRICK v. SAME

Court:Supreme Court of New Hampshire Cheshire

Date published: Dec 1, 1897

Citations

45 A. 561 (N.H. 1897)
45 A. 561

Citing Cases

Littleton v. Company

The public acquire no right of entry upon the land taken for a highway until final judgment laying the way.…

Hoban v. Bucklin

VII. The bill to enjoin the use of the underpass pending the appeal from its layout as a highway should be…