Before the defendant railway company could rightfully occupy the street with their works, they were bound to secure a determination by the proper authority of the following questions: (1) Whether the public good required the construction of the proposed railway; (2) whether the public good required its construction over this particular street; and (3) where upon the street the public good required the track, poles, wires, and other appliances to be located. Laws 1889, c. 178, s. 2; Laws 1895, c. 27, ss. 3, 5; Petition of Nashua Street Railway, 69 N.H. 275 276, 278.
That the public good required the construction of the railway, "was decided by the legislature when the corporation's charter was granted." Petition of Nashua Street Railway, 69 N.H. 275, 278. Whether the public good required the construction of the railway upon the street in question, rather than over some other route, and if so, where upon the street, were questions which the charter of the defendant railway company in express terms referred to the selectmen of Rochester, to be by them inquired of and determined, "in like manner as highways are laid out." Laws 1889, c. 178, s. 2; Petition of Nashua Street Railway, 69 N.H. 275.
Had the selectmen or corresponding municipal authority of Rochester, at the time of the plaintiff's injury, determined "in like manner as highways are laid out," that the public good required the construction of the railway upon the street in question, and where therein it should be located? Section 1, chapter 45, Public *Page 60 Statutes, provides: "On petition to the selectmen for the laying out or altering of highways, or for laying out lands for any public use, and generally for the purpose of deciding any question affecting the conflicting rights or claims of different persons, their proceedings shall be governed by the following rules." Sections 2 and 3 relate to notice; and as the notice in the present case is not questioned, they are immaterial. Section 4 provides: "They [the selectmen] shall make their decision in writing, and cause the petition, order of notice, evidence of service, and their decision to be filed in the town clerk's office and recorded at length upon the town records; and their decision shall be of no force or effect until the same is done." At the time of the plaintiff's injury, the foregoing provision had not been complied with. If it could be said, upon the findings, that the vote of February 11, 1901, was a "decision in writing" that the public good required the construction of the railroad over the street in question, and that the minutes of the meeting of the city council were a record thereof sufficient to answer the requirements of the statute, by no stretch could it be said that the vote of that date was a determination of the question of particular location. The vote in terms grants nothing more than a "general location," while the subsequent votes and conduct of the city council show conclusively that there was no location or record thereof, within the meaning of the statute, until December 10, 1901, long after the plaintiff was injured. The action of February 11, 1901, did not, therefore, authorize occupation of the street by the defendants for the purpose alleged.
It is urged that the charter provision requiring that the "railroad shall be laid out by the selectmen of said Rochester in like manner as highways are laid out" was repealed by chapter 27, Laws 1895. By the express terms of that act, charters theretofore granted were altered and amended only so far as inconsistent therewith. Petition of Nashua Street Railway,69 N.H. 275; Petition of Keene Electric Railway, 68 N.H. 434. Whatever inconsistency there may be between the provisions of that chapter and other provisions relating to the laying out of highways, we discover no inconsistency between anything in that chapter and the particular provision of the highway law: that until a decision and record, in accordance with section 4, chapter 45, Public Statutes, all steps in the laying out of a highway are without force or effect. If there had been nothing in the charter making the proceedings for location subject to that provision, and the proceedings had been under section 5, chapter 27, Laws 1895, exclusively, still they would have been subject to that provision by virtue of section 1, chapter 45, Public Statutes.
The sweeping terms of the statute leave the court no liberty to *Page 61 regard the general considerations urged by the defendants. The statute compels the conclusion that at the time of the plaintiff's injury the defendants' occupation of the street for the purpose alleged was unauthorized.
Nonsuit stricken off.
CHASE, J., was absent: the others concurred.