By the law as it existed at the time this appeal was taken, highways of this kind might be laid out subject to the maintenance of bars and gates, but it was expressly enacted that they should be subject to no other conditions whatever. It appears that the selectmen laid out this highway, subject to the condition that it should be built and maintained by the petitioner, and to be a highway no longer than he should so build and maintain it. In other words, the judgment of the selectmen was, that the public good did not require this highway to be laid out unless the petitioner would not only pay the land damages as the statute requires, but also build and maintain the highway at his own expense. This seems to me to have been equivalent to saying that there was no public occasion for the highway. At all events, it was a case not authorized or contemplated by the statute. It is clear that the appellant cannot be deprived of his property except for a public purpose, and in strict conformity with the statute. This objection, therefore, is fatal to the proceeding. The selectmen had no authority to lay a highway under such circumstances. The appellant, whose land has been taken from him without authority of law, is well entitled to say that he is aggrieved by the doings of the selectmen in laying out the highway, and, as the statute authorizes the appeal in such a case, it would appear that it must authorize the court to redress the grievance complained of. Whether certiorari would also be a proper remedy, it is not necessary now to decide.
It has been held — Metcalf v. Swett, 1 N.H. 338 — that a writ of error does not lie to reverse a judgment of the court of common pleas from which an appeal might have been taken; and the same doctrine is intimated in the case of Wallace v. Brown, 25 N.H. 216. The question is suggested in the matter of Brown's Petition, 51 N.H. 367, in regard to the writ of certiorari. *Page 191
But it is said that the appellant has waived the objection on account of the imposition of the condition in the laying out of the road.
We have seen that the objection is fatal, because the laying out of the road in the manner it was done was not only without authority, but in fact directly in contravention of the statute, which provides — ch. 61, sec. 12 — that no other condition (viz., excepting the maintenance of gates or bars) shall be affixed to the said laying out, or imposed upon the individual for whose benefit the laying out was made.
Now, in what manner can it be said that the appellant has waived his right to make this objection? Within the time limited by the statute he appealed from the doings of the selectmen, alleging that he was aggrieved by the decision of the selectmen in laying out the highway, and in the assessment of damages. The statute does not require that he should, when taking his appeal, set out the grounds of his appeal, nor does it appear that any order was made upon him by the court for a specification or bill of particulars. It could not be known, until the report of the commissioners came in, whether they would retain the objectionable feature or not, and there was nothing in the objection which raised any questions for the jury, or in any way affected the jury trial. I do not see how the appellant has done anything which would justify the petitioner in believing that he did not mean to insist upon that objection, or in altering his situation by reason of such belief. It seems that the most that could be said would be, that, if necessary, as in any other case where the party proposed to amend his specification or pleading, such terms might be imposed upon him as would indemnify the other party. No such occasion is apparent to me. My opinion, therefore, is, that the laying out of the highway must be adjudged to be void.