The State v. Raymond, 27 N.H. 388

Eastman, J. We have recently had before us several cases, in which the principle which must govern the decision of one of the exceptions stated in this case, was considered with more than ordinary deliberation. In Guernsey v. Edwards & a., 6 Foster’s Rep. 224, we stated that where the proceedings in laying out roads are void for the want of jurisdiction, they must, so far as the proceedings themselves are to be considered, fail under all circumstances.

But if the character of the objection be such that it might have been cured or obviated by a fecommitment of the report, or other legal proceedings before judgment on the report, it cannot prevail in after proceedings, unless the party raising the exception is in a situation to take advantage of the error. And in The State v.

Richmond, 6 Foster’s Rep. 232, we took the ground that the laying out of a highway by selectmen, in cases where they have general jurisdiction of the subject matter, is not void in the strictest sense of that term, although the course of proceedings prescribed by the statute may not have been followed; as if a land owner, over whose land a part of the highway has been laid, has not been notified, or no damages have been awarded him.

Such laying out may be confirmed and the objections to it waived by the parties whose interests are involved, and whose rights are neglected; and it will thereby be rendered valid and effectual, because there is then no person who has the right to complain; that where the parties whose rights have been disregarded, have released their exceptions, or waived them, either expressly by their acts,‘ or impliedly by their acquiescence, the laying out cannot be avoided on account of such exceptions. Such was the purport of those decisions. The case of Dinsmore & a. v.

Auburn, 6 Foster’s Rep. 356, does not conflict with these decisions. That was decided upon the ground of the entire want of jurisdiction. Such was also the ground upon which several other of the authorities cited for the defence were decided. The very ingenious argument of the counsel for the town has led us to reexamine the principles upon which Guernsey v. Edwards and The State v. Richmond, were decided. This we have carefully done, but without being able to discover any error in their correctness.

It is clear that the court had jurisdiction to lay out this road in Raymond, and nothing appears upon the case to show that the action of the commissioners and court was defective for want of jurisdiction; and the only question that can arise in this branch of the case, is, does the town stand in a position to complain of the neglect to give notice to James Welch ? The town stands in a different position from that of any individual whose interests are affected by the laying out of a highway. Individuals can complain only of such neglects and omissions as directly affect their interests.

The burden of building and maintaining highways is imposed by law upon the towns in which they are situated, and they have therefore been permitted to take seasonable exceptions to every defect in the proceedings by which the laying out may be affected as to individuals, because their burden is coextensive with all the land over which it is laid, and because their power to perform the duty of making and repairing it, is dependent upon its being effectually laid out.

To secure the opportunity to take advantage of every exception to the regularity of the proceedings, whether directly affecting the town or the land owners, the law requires that notice shall be given, by an order of court, to the town, before the reference of the petition to the road commissioners; and again by the road commissioners, of the time and place of hearing before them, and the town is usually the parly defendant in the case until it is finally decided.

Being thus notified, and having the opportunity to be present, they will not be permitted to be heard to make any objections at the hearing upon the report, which they had opportunity to make before the reference. They will not be permitted to suffer the petitioners to incur the expense of a hearing before the commissioners, and take the chance of a decision in favor of the town, while they hold in reserve what they suppose to be a fatal objection, if the decision should be against the town.

A report having been made by the commissioners favorable to the petitioners, it becomes the right and duty of the town to take all such exceptions as may be legally raised to the regularity of the proceedings. It is the duty of the agents of the town, to the town itself, to the public, to the petitioners, and to the court, to seek out and bring to the notice of the court every objection to the proceedings which ought to prevent the acceptance of the report.

It is unjust and inequitable for a party to lie by and be silent as to any objection which he knows, or which by reasonable diligence he ought to know, during the stage of the cause, when, if the objection were made, it might be obviated by further proceedings. As a general rule, exceptions will be considered as waived, unless taken at the first legal opportunity. Stevens v. Goffstown, 1 Foster’s Rep. 454; Foss & a v. Strafford, 5 Foster’s Rep. 80; Gilford’s Petition, 5 Foster’s Rep. 124; Goodwin & a. v. Milton, 5 Foster’s Rep. 458.

In the present case, it is not denied that the town was regularly notified of the pendency of the proceedings before the court and the commissioners, for no objection is suggested as to either; and consequently they had an opportunity to take any exception founded on the want of notice to any person or party by law entitled to notice, but they did not take that on which they now insist. They must be taken to have known it, since the defect is apparent upon the face of the commissioners’ report.

They might have made it then, and then it might have been obviated by a re-commitment, or by proof that the party, though not formally notified, had in fact consented to attend, and had been fully heard before the commissioners, or that he waived any notice before the commissioners, (for a parol waiver in such cases is sufficient;) or a release of the'exception might have been obtained from Welch. Such a waiver or release has been constantly held to obviate all exception on account qf the want of notice.

The position in the argument that the record itself shows the laying out to be defective, is answered by the fact, that it was unnecessary, and it is not the practice, for a waiver or release made on the coming in of a report, to be made a part of the report. The town, then, having had the opportunity to bring for'ward this objection, and having neglected so to do, have waived all objection on this account, and cannot now be heard to make it.

This waiver may be understood as an admission that the objection has in fact no real foundation; that either "Welch was notified and the fact accidentally omitted to be stated in the record, or that he has waived all objection or obviated it by release. If the town had put upon the record a written admission or agreement that all the land owners had been duly notified, it could not be pretended that they could be heard to say that Welch had never been notified, and the effect of the legal principle to which we have referred must be equally binding.

These suggestions have been made without regard to the fact stated by the counsel for the State, as to the manner in which the notice was given. But if the fact be as suggest-'' ed by him, it only tends to show that there is very little of equity in the exception. The town, then, having been silent on the return of the report, when they ought to have spoken, cannot now be heard to speak when they ought to be silent; and this exception must be overruled.

The objection to the form of the information must also fail. , It would be extremely onerous to require that all the proceedings, by which a.highway is laid out, should be set forth in the information or indictment. The information states “ that on the first day of January, 1852, there was; ever since has been, and still is, a new public highway, in the town of Raymond, in said county, duly laid out and established by law;” and then gives a description of the road. And this, we think, is entirely sufficient, .without going into all the details by which the road was laid out.

It alleges the existence of a highway within the limits of the town, and that the town is bound to make it and keep it in repair; and the particular and detailed proceedings by which it became a highway, are, in our judgment, more proper for evidence on the trial, than for averment in the indictment. An information must allege sufficient facts to show an of-fence for which the town is liable, and that was done in this case. According to the provisions of the case there must be Judgment for the State.