In the absence of findings upon which the decree is based, I am of opinion that we must assume an implied finding to the effect that the road in question has been deemed to be public highway.
It seems to me that the facts most favorable to the defendants to establish such a proposition can be summarized as follows: Previous to 1917 access from the dugway to the main highway was had over land east of what is known as Mill Brook. In that year the road, known as a tote and go-back road used mainly for logging purposes, was improved some by one Smith, but wires or barways were, for different purposes, maintained across the south entrance to the road from then on to 1937. But one automobile was known to have used that road, and then but once, in 1923, by a civil engineer. The only others known to have used the road during those years were hunters and fishermen, during the hunting and fishing seasons, and by them on foot. One of the defendants, Pike, built a camp in 1938 on leased land, and traveled to and fro over the road in question, from then on, though he says he had been going in there since 1929, probably half a dozen times a year. From 1924 or 1925 on, old, high slung cars such as Model T Fords could be and were used to a limited extent. One witness testified that he had been in there once with a Ford, probably as early as 1916. There is some very general testimony *Page 323 to the effect that people have been seen using the road, but invariably it is limited to sportsmen, mostly on foot, and on few occasions with teams over part of the road to haul out deer. The one witness who seems to have used the road the most fixes the maximum trips made by him in one year to sixteen.
In 1934 plaintiff purchased an extensive tract of land in the area covered partly by this old road. In order to facilitate his logging operations he built a new road, on the west side of the Mill Brook, from the main highway for a considerable distance partly over land of two other owners, with one of which at least he had a mutual agreement for the use of one another's land, which road joined the old road at or near the High Bridge or dugway. He had trouble with people stealing some of his wood, so he erected fences, wires and barways, and kept some of them under lock and key. He also, after a while, put up a sign "Private Road" at the entrance of the road. The improvements to the road were made at his own expense. There was also evidence that other owners, at least probably two, had also made some improvements to some parts of the road in order to enable them to conduct their lumbering operations, but no other but the plaintiff made any improvements on the new road, at least from the main highway to the point of juncture with the old road. There was no evidence whatever that the town of Stark, in which these lands were located, ever expended any money whatsoever for the building, upkeep, repair or maintenance of either one of the two roads, nor had ever exercised any control or supervision over them. The roads were never laid out as required by law. R. L., c. 90, s. 2.
Two of the defendants acquired leases over some lots of land for camping purposes; the first November 1, 1938, and the second November 1, 1940. From then on they undertook to travel over the new road to have access to their camps. Plaintiff did not object as long as they traveled on foot, or as far as they could go with their cars, provided they limited themselves to the use of the road when it was dry. When wet, in rainy seasons, the use of automobiles damaged the road, so plaintiff objected, but to no avail, hence the petition for an injunction.
Photographic exhibits in the case show the road to be a one-lane road, over rough terrain, with bars across it, and with the floor of the bridge known as High Bridge anything but in good condition, all of which tend to negative and disclaim a substantial use of the way by the public. *Page 324
On such a state of proof it is difficult to see how anyone can seriously contend the road in question to be a public highway. "A highway may be proved by long usage. But a way to become public must be used in such a manner as to show that the public accommodation requires it to be a highway, and that it is the intention of the owner of the land to dedicate the way to the public." Barker v. Clark, 4 N.H. 380, 383; State v. Nudd,23 N.H. 327, 337. Evidence to the effect that some people may have long been accustomed at certain times of the year and for certain limited purposes to pass over some portion of the road on plaintiff's property, on foot and with teams, or motor vehicles, is not sufficient to establish it as a public highway, unless such evidence goes far enough to prove that the way had been opened, or made, or repaired as a highway (Barker v. Clark, supra, 383), which latter evidence is lacking utterly in this case. It may well be said here, as it was said in State v. Nudd, supra, 338, 339, that "The use made of the way was private in its character, and not general; was trifling in amount, and at most, only occasional, at particular seasons of the year. . . . Such a use would certainly furnish no evidence of a public necessity for a road, and consequently, none of a dedication to such use is to be inferred from public use and necessity. . . . It is well settled that even an uninterrupted and constant use of a way for twenty years, is not conclusive evidence of a right." See also Wason v. Nashua, 85 N.H. 192, 198 and cases cited.