Barber and others, pet'n'rs, vs. Andover, 8 N.H. 398

Parker, J. We have no doubt that the legislature may authorize the laying out of a common public highway over a road made by a turnpike corporation, and the taking of the franchise of the corporation for that purpose ; notwithstanding the charter of the corporation is still in force, and the corporation in possession of the road constructed by virtue of it; provided compensation is made to the corporation for their property thus taken for public use.

It is true that the public have the right to the use of such turnpike road, under certain restrictions and limitations ; but the public may require a further use of it, in a different manner ; and there is nothing in the nature of the grant to the corporation, or in the use of the property, which should prevent the public from taking it for use in such different manner, if the public exigencies require it. The reasons upon which this opinion is founded are so fully stated in The Piscataqua Bridge vs. The New-Hampshire Bridge, 7 N. H.

Rep. 35, that it is unnecessary to qonsider the subject more at large at this time. But we find in the statutes authorizing selectmen and the courts of common pleas to lay out highways, nothing to justify them in taking property of this character for the purpose of laying out a common public highway.

The whole tenor of the act authorizing them to lay out highways seems to show that it was not in the contemplation of the legislature to empower them to interfere in cases where the legislature had given to a corporation a special grant of authority to construct a way. and take tolls for the use of it; but the only provision for the assessment of damages, enacting that damages shall be assessed to the owners of the land, indicates that such a power was not intended to be conferred.

We are of opinion, therefore, that the exceptions to the report of the committee are fatal, and that the report must be rejected by the court of common pleas.