Dissenting opinion.
Murciiie, J.I am unable to concur in the decision that the defendant caused a public nuisance in a state aid highway on Deqember 11th, 1942 within the purview of the statute on which the majority of the Court relies. I am satisfied that more than 30 years’ legislation designed to vest full control over an interlocking system of state highways and the continuous maintenance of state aid highways in a State Highway Commission has not been so pointless and ineffective that its employees may be enjoined from conducting maintenance work on a highway opened for the laying of a cable until the permit-tee has restored it to good repair.
If the opinion of the majority is taken literally one who digs up any highway except a paved city street becomes an insurer against damage • subsequently suffered thereon (presumably within a reasonable time) traceable to road work by the State Highway Commission unless the one so opening the highway has maintained its legal right to put the highway in good repair by the use of injunctive process, if necessary, to restrain interference on the part of unauthorized authority. Despite the definite dictum of the Court majority declaring the right to this extraordinary remedy, I cannot believe that if the issue is raised squarely the clear mandate of It. S. 1930, Chap. 28, Secs. 9 and 18 as amended will be ignored.
The depression in the highway which is found factually to have caused the plaintiff’s automobile to overturn did not result from defendant’s refilling of the trench. That refilling was completed on November 24th, 1942 and employees of the State Highway Commission immediately took over to lay a road *344surface. The defendant left no depression. It filled the trench with tamped-in gravel, crowned at the road surface. The evidence discloses and the opinion of the majority recognizes that the depression apparent on December 3rd or 4th was caused by the kicking up of materials placed in the highway by employees of the State Highway Commission. The State laid a second new surface after December 3rd and there can be no doubt on the record that the road condition which caused the damage (on the finding of the Court majority) was the direct result of its failure to withstand wear and weather. When the facts are analysed it is clear that the liability imposed on the defendant is not based on its failure to make the highway safe and convenient for travel (for which it would have been hold-en to indemnify public authority against any claim originating in a highway defect) but on its omission to resist intermedling by the State Highway Commission.
The statute on which the liability is grounded antedates the highway policy induced by the advent of automobiles. Motor vehicle traffic required the policy declared in P. L. 1913, Chap. 130 (R. S. 1930, Chap. 28, Sec. 1) with its interlocking system of state highways and continuous maintenance thereof (and of state aid highways) which superseded earlier less-inclusive legislation along similar lines. R. S. 1903, Chap. 23, Secs. 99 et seq.; P. L. 1907, Chap. 112; P. L. 1909, Chap. 69; P. L. 1911, Chaps. 21 and 183. The conception of state roads as distinguished from those constructed and maintained by counties and municipalities traces back to 1901, P. L. 1901, Chap. 285. The objective since has been increasing state participation and control over both construction and maintenance. R. S. 1903, Chap. 23; R. S. 1916, Chap. 25; R. S. 1930, Chap. 28; R. S. 1944, Chap. 20. (See also the laws enacted from 1901 to 1943 inclusive consolidated in the several revisions.)
P. L. 1913, Chap. 130 constituted the State Highway Commission as an administrative agency to control the construe*345tion and maintenance of a state highway system, superseding the State Commissioner of Highways. P. L. 1907, Chap. 112. Since the effective date of the 1913 law the State Highway Commission has been vested with exclusive authority to “lay out, construct and maintain a system of state and state aid highways” (P. L. 1913, Chap. 130, Sec. 8; R. S. 1930, Chap. 28, Sec. 8), and charged with the duty of continuous maintenance of state and state aid highways (to the improvement of which the State has contributed), P. L. 1913, Chap. 130, Secs. 9 and 18; R. S. 1930, Chap. 28, Secs. 9 and 18. As of the same effective date the State undertook to reimburse municipalities on judgments recovered for defects in the highways it was obligated to maintain. P. L. 1913, Chap. 130, Sec. 27; R. S. 1930, Chap. 28, Sec. 39.
The foundation for the opinion of the Court majority lies in the fact that R. S. 1930, Chap. 68, Sec. 15 has not been repealed or modified by express enactment. The same is true of R. S. 1930, Chap. 27, Secs. 1, 16, 25, 29, 55, 60, 66, 70 and 86, yet the authority there conferred upon county commissioners and municipal officers by explicit language unchanged since 1883 has been vested in the State Highway Commission to the exclusion of the named local officers for more than 30 years except for highways which have not become a part of our statewide system.
Without reference to anything outside R. S. 1930, Chap. 68, Sec. 15,1 cannot believe the Legislature intended that one opening a highway for laying pipe or cable should be holden for causing a public nuisance if the municipal officers repaired the opening. The State Highway Commission has been substituted for municipal officers as to all the provisions of the section “relating to the repair of streets ... .” P. L. 1913, Chap. 130, Sec. 16; R. S. 1930, Chap. 28, Sec. 16. Since it assumed to make or complete “such repairs” as it deemed necessary to put the highway in “as good repair” the permittee should not be held to have caused a nuisance thereby.
*346Reference to the history of R. S. 1930, Chap. 68, Sec. 15 discloses that it traces back to P. L. 1895, Chaps. 102 and 103, dealing respectively with Gas and Electric Companies and Telegraph and Telephone Companies. It appears as Section 7 of the former, where it closes with the words “shall be decreed guilty of nuisance.-’ Section 10 of that law carried provisions substantially identical with R. S. 1930, Chap. 68, Sec. 17. The words “and shall be liable to the city or town for all expenses incurred in making such repairs” were written into R. S. 1903, Chap. 55, Sec. 7 in consolidating the two 1895 laws therein. They seem to indicate, as did P. L. 1895, Chap. 102, Sec. 10 which became R. S. 1930, Chap. 68, Sec. 17, that municipalities should repair roads opened under permit if the permittees did not and to impose liability for damages resulting from highway defects in default of repair by either permittee or municipality.
The recovery allowed is under R. S. 1930, Chap. 26, Sec. 19. Section 5 of the same chapter describes numerous nuisances including the obstruction or encumbering of highways by fences, buildings or otherwise. The express recitals of R. S. 1930, Chap. 68, Sec. 15 that persons digging up highways shall do so in such manner as to produce the minimum of interference with public travel and of the following Section 17 requiring permittees to reimburse municipalities holden for highway defects traceable to the digging indicate that the legislation involved is being given a scope which far exceeds the legislative intention underlying its enactment.
I am authorized to say that Mr. Justice Thaxter is in agreement with this dissent.