
    Cheshire,
    Dec., 1897.
    Morse v. Wheeler. Herrick v. Same.
    The laying out of a highway by selectmen is yacated by an appeal; and during the pendency thereof, one who travels the way is liable to the landowner in an action of trespass.
    Trespass, guare clausum. Facts found by a referee. The defendant petitioned for a highway which was laid out by the selectmen over lands of the plaintiffs. From the laying out each plaintiff' appealed. The trespass complained of in each ease consisted in opening and traveling the way during the pendency of the appeal which, at the hearing before the county commissioners, was abandoned. The court ordered judgment on the report for the plaintiffs, and the defendant excepted.
    
      JBatchelder f Faulkner, for the plaintiffs.
    
      Hiram Blake and Don H. Woodward, for the defendant.
   Carpenter, C. J.

The laying out of a highway by the selectmen is vacated by an appeal. P. S., c. 68, ss. 2, 8; Wallace v. Brown, 25 N. H. 216, 220, 221; Stalbird v. Beattie, 36 N. H. 455, 456. If the law were otherwise, it might in some cases make the right of appeal practically useless to the landowner; and in all cases where the road is not finally established, might compel towns to pay damages to the landowner and perhaps other expenses, without any corresponding benefit to the public.

Exception overruled.

Parsons, J., did not sit: the others concurred.  