Supreme Court of New Hampshire Belknap.
Decided June, 1880.
Upon a petition for a highway beginning at a hub on B. street, a highway may be laid out beginning at the southerly end of B. street, although the petitioners erroneously supposed a hub ninety-one links further south was at the southerly end, they desiring a highway from the southerly end, and all persons concerned naturally understanding that the petition asked for such a highway. In such a case there may be an amendment of the petition after the highway is laid out, describing it as beginning at the southerly end of B. street.
PETITION for a highway in Laconia, beginning at a hub on Baldwin street, and running southerly to a point on Pine street. On this petition the commissioners laid out a highway beginning at a described hub, and running by certain southerly courses to Pine street. Their report being recommitted, the following facts appeared in their second report: The hub described in the first report is ninety-one links distant from the southerly end of Baldwin street, and in a line with that street. From the southerly end of the street to the hub there is a graded way, free from obstruction, and open to the public. At the first hearing, the hub was pointed out to them as the one mentioned in the petition, and as being on, and at the southerly end of, Baldwin street. It was their intention to lay a highway from Baldwin street to Pine street. After they had laid it out it appeared that Baldwin street had not been laid out so far south by ninety-one links as they supposed. Upon these facts, in their second report, they laid a highway over the intervening space of ninety-one links by metes and bounds. The court ordered judgment for the plaintiffs on both reports, and the defendants excepted.
Hibbard, for the defendants.
Whipple, for the plaintiffs.
DOE, C. J.
The petition is for a highway from Baldwin street to Pine street. It having been erroneously supposed that Baldwin street had been laid over the piece of graded way ninety-one links long, which was apparently a part of Baldwin street, the first report
was properly supplemented by the second. By the judgment on both reports, a single highway is established from the southerly end of Baldwin street to Pine street, where the plaintiffs desired it, and where their petition was naturally understood to ask for it. Nobody could fairly misunderstand them or their petition. The mistake was in supposing that Baldwin street was a highway ninety-one links further south than it had in fact been laid. It does not appear that any one has been harmed by this mistake, or that any one acting in good faith could be harmed by it; and it is no cause for reversing the proceedings. An amendment of the petition may now be made, describing the highway as beginning at the southerly end of Baldwin street. Roulo v. Valcour, 58 N.H. 347; Merrill v. Perkins, ante 343; Boudreau v. Eastman, ante 467.
ALLEN, J., did not sit: the others concurred.