FROM COOS CIRCUIT COURT. By express provision of law, selectmen are authorized "to lay out any new highway * * * for which there shall be occasion, either for the accommodation of the public or of the person applying;" and if it be for the accommodation of an individual, it may be laid out subject to gates and bars, to be maintained by the person thus accommodated, his heirs or assigns; "but no other condition shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made." Gen. Stats., ch. 61, secs. 1, 12.
The report of the selectmen as well as that of the commissioners declares that the highway in question was laid out for the accommodation of the original petitioner, not subject to gates or bars, but upon this condition among others, that the same should "remain a highway so long as said petitioner shall keep the same in repair, and no longer."
These conditions are not precedent, but subsequent. Still, they are not so far independent of the laying out of the highway as that they may be rejected and declared void, and yet the remainder of the report stand good, because it is provided that the new road shall remain a highway so long only as the petitioner shall keep it in repair; and, since he is also required to do certain other things by way of protection of a well, situated within the limits of the road, for the use of an adjoining land-owner, it seems more than probable that the conditions thus affixed to the laying out, and "imposed upon the individual for whose benefit the laying out was made," in express violation of the plain provisions of the statute, are such as determined the judgment of the several tribunals in favor of laying out the highway. Brown v. Brown, 50 N.H. 538, 552.
It is suggested in argument, that, since these conditions are imposed upon the petitioner alone, the plaintiff is not entitled to take advantage of them. This is a singular position for the defendant to take. The plaintiff is the party whose land the defendant — the original petitioner — proposes to have confiscated for his own special benefit, by means contrary to law. "Any land-owner or other person aggrieved by the decision of the selectmen in laying out or altering a highway" may appeal, and, upon a subsequent reference to and report of the *Page 190 commissioners, the "decision of the selectmen may be affirmed, modified, or reversed." Gen. Stats., ch. 63, secs. 10-12.
The right of appeal carries with it the obligation of the court to grant redress, if so grave a cause as the clear violation of statutory provisions be shown.
The plaintiff's objections to the report are not to be considered as waived because not taken at the first term of court to which the report of the commissioners was returned.
No statute or rule of court limits the time within which the objections to the report shall be taken, nor requires a specification of them within a prescribed period. The court is at liberty to make such orders in such a case as justice may seem to require. Gen. Stats., ch. 189, sec. 6.
It does not appear, and is not suggested, that the defendant is prejudiced by any delay of the plaintiff.
I deem it unnecessary to consider the constitutional questions, which are the main questions discussed by counsel, since, for the reasons already declared, the laying out of this road must be held void.