Asa Robbins versus The Town of Bridgewater, 6 N.H. 524

RichakdsoN, C. J. delivered the opinion of the court. In'order to determine the questions which this case presents for our decision, it is necessary to examine the nature of the powers exercised by the Court of Sessions, in laying out highways, and decide when its adjudications are conclusive, and when and in what manner their validity may be called in question. The authority to lay out a highway is not necessarily judicial. Selectmen of towns have power, in certain cases, to lay out highways, but the power they possess on the subject, has never been considered as judicial power.

If they proceed according to law, their proceedings are valid, but if they proceed otherwise, all is void, and the validity of their doings may be called in question collaterally. No certiorari lies to quash their proceedings. 2 N. H. Rep. 199, The Third Turnpike v. Chamney; 3 Greenleaf, 438, Harlow v. Pike; 2 Mass. Rep. 529, Commonw. v. Merrick; 4 ditto, 367; 6 ditto, 7, Craigie v. Mellen; 5 Pickering, 492, Kean v. Stetson; 9 ditto, 146, Jones v. Andover; 1 Greenleaf, 111, Bethum v. Turner.

But the Court of Sessions, which laid out this highway, had all the powers, in relation to laying out highways, which the Court of Common Pleas now has ; that is, it had all power on the subject, except, that, selectmen of towns had power to lay out town ways, and the Sessions had authority to lay out such ways, only in cases where selectmen had refused. This power, in the Court of Sessions, has always been considered as judicial, and in general the proceeding of the court has been held to be conclusive, until quashed upon a certiorari. 9 Mass. Rep. 124, Loring v. Bridge; 2 ditto, 489, Commonw.

Coombs; 4 ditto, 446, Commonw. v. New Milford; 1 ditto, 86; 3 ditto, 188, 229, & 406; 6 ditto, 491; 7 ditto, 158; 2 ditto, 118, & 125; 4 ditto, 627; 2 Pickering, 547; 6 ditto, 470; 8 ditto, 218, & 343; 9 ditto, 46; 10 ditto, 270; 11 ditto, 322. In cases, however, where it clearly appears that the Court of Sessions could have had no jurisdiction, under any circumstances, to lay out a highway, perhaps their doings may be called in question collaterally, and be considered as void. 1 Pick, 180, Commonw. v. Charlestown; 10 Mass. Rep. 70, Arundel v. McCullock; 13 ditto, 294.

In this case the land of the plaintiff has been taken for the use of the public, and lie seeks, in this action, to recover the damages awarded him by the Sessions on that account. It is objected, that it does not appear that any application had been made to the selectmen of Bridge-water, or that they had refused to lay out the road, and that therefore, it does not appear that the Sessions had any authority to lay out the road.

But the application to the Sessions stated, as the ground of the application, that the selectmen had refused to lay out the road ; the road has been laid out and made several years ; and we are of opinion that it may be now safely presumed that the Sessions had evidence that the selectmen refused to act ; and this presumption must stand until the proceedings of the Sessions are quashed upon a writ of certiorari brought for the purpose.

Upon the question whether the plaintiff was, under the circumstances, entitled to any damages, the adjudication of the Sessions was final and conclusive ; and until the proceedings of the Sessions shall be quashed, that question cannot again- arise. Judgment for the plaintiff. Parker J. having been of counsel, did not sit.