Laconia v. Gilman , 55 N.H. 127 ( 1875 )

It appears to me that the cases of Troy v. Cheshire R. R. Co., 23 N.H. 83, and Hooksett v. Company, 44 N.H. 105, are in point, and decisive that this action can be maintained.

LADD, J., concurred.

Demurrer overruled.

"For redress whereof:

"Be it enacted by His Excellency the Governor, Council, and Representatives, convened in General Assembly, and by the authority of the same, That henceforth no edifice, building, or fence whatever shall be raised, erected, built, or set up in, upon, or over any of the said roads, highways, streets, lanes, or alleys within this province, or any part of any of them, whereby to straighten the passage, or any ways lessen the full breadth of any such roads, highways, streets, lanes, or alleys: and if any edifice, building, or fence whatsoever, shall be raised, erected, built, or set up upon, in, or over any such road, highway, street, or alley, contrary hereunto, every such edifice, building, or fence shall be deemed and held to be a common nuisance: and the court of general sessions of the peace within this province, upon complaint, and making out the same before them, are hereby empowered to order, and cause such edifices, buildings, or fence to be taken down, demolished, and removed; and also to cause to be removed all such incroachments or incumbrances as heretofore have been made upon, in, or over any common road, highway, or street, as aforesaid; and the charge thereof to be answered and paid by disposing of so much of the materials as shall be necessary to satisfy the same: Provided, nevertheless, That this act shall not be intended or construed to intend the prohibiting of the setting up of any conduit, watch-house, cage, or stocks for public use, in or upon any highway or street within this province."

And the act of April 18, 1721, provided as follows: "And whereas several highways are infringed on by reason of people's fencing or building on the same:

"Be it further enacted by the authority aforesaid, That every person or persons so offending, upon notice given them by the surveyor or surveyors, shall be obliged to remove said fence or building, and in case that within two months after such notice given the fence or building be not removed, and the person or persons so offending still refuse or neglect to do it, it shall be in the power of the surveyor or surveyors to pull down such fence or building at the charge of the person or persons so offending, and the money for defraying said charges shall be levied by warrant from any one justice of the peace (of the town were such offence is done) on the estate or body of the person or persons offending, upon application of the surveyor or surveyors for the same." REPORTER.