
    Oarroll,
    March 3, 1903.
    Brackett & a. v. McIntire & a.
    
    A vote of a town “ to rescind all action taken by the selectmen relating to a proposed new road ” operates as a discontinuance of the highway laid out by them.
    Petition, for a writ of mandamus against the defendants as selectmen of Tuftonborough, to compel the building of a highway. Facts found, and case transferred from the October term, 1902, of the superior court, by Peaslee, J.
    
      April 21, 1902, a petition was presented to the selectmen requesting them to “ lay out a road beginning at a stake and stone near the residence of Johnson Langelle and extending along the shore of Dan Hole pond as far as a stake and stone at the boundary line between Ossipee and Tuftonborough.” The locus is known as Canaan. Upon this petition a hearing was had, and July 31,1902, the selectmen made a return of the lay-out. Under a sufficient warrant, a town-meeting was held August 23, 1902, when it was “ voted to rescind all action taken by the selectmen relating to a proposed new road or highway in Canaan, so called.” Since this 'time the selectmen have refused to build the road. September 30, taxpayers and citizens of Tuftonborough filed an appeal from the lay-out, which is still pending. The court dismissed the petition, and the plaintiffs excepted.
    
      Small W. Abbott and J. Albert Brackett (of Massachusetts), for the plaintiffs.
    
      Arthur L. Foote, for the defendants.
   Walker, J.

Whether a petition for mandamus against the selectmen is the appropriate form of action to secure the building of a highway laid out by them (State v. Landaff, 22 N. H. 588; Currier v. Davis, 68 N. H. 596); whether, if it is, it is not prematurely brought pending an appeal from the laying out; whether the plaintiffs are proper parties; and whether the highway in question is one the selectmen had power to lay out (Griffin’s Petition, 27 N. H. 343), are questions which it is unnecessary to decide, since it appears that the highway in question has been discontinued. The vote of the town of August 23, “ to rescind all action taken by the selectmen relating ” to the proposed new road or highway, sufficiently states the purpose to discontinue the same. The “ action taken by the selectmen ” was the laying out of the highway in question, and the evident purpose of the vote was to nullify the action of the selectmen so far as the town had power to do so. As the power of the town to discontinue the highway is not denied (P. S., c. 72, s. 1), and as the exercise of that power was the apparent purpose of the voters, shown by competent evidence, the highway, if legally laid out, was legally discontinued.

Exception overruled.

Chase, J., was absent: the others concurred.  