When Early New Hampshire Roads Stopped at Town Lines

In the late 1700s and early 1800s, New Hampshire faced a practical problem: how do you create a public road crossing multiple towns or counties when highways were laid out locally by town selectboards?

The issue involved more than transportation. A highway layout constituted a taking of private property for a public purpose. Landowners could lose land against their wishes, provided the law supplied notice, process, and compensation.

From the beginning, New Hampshire approached the issue cautiously. The legislature did not create a sweeping statewide power to draw roads across a map. Instead, public roads were laid out parcel by parcel through individualized eminent domain proceedings.

Highway Layouts Within a Single Town

A 1786 statute placed primary authority in local selectboards. Upon petition, selectmen could lay out highways within their respective towns. The statute also required compensation to landowners whose property was taken for the road.

Highway Layouts from Town to Town

The 1786 statute also addressed highways running “from town to town” through several towns within the same county.

For those roads, the statute gave authority to the “court of sessions of the peace for such county.” That process avoided the need to rely solely on separate decisions by each town’s selectmen when one connected road needed to pass through multiple towns.

Highway Layouts from County to County

As population increased and commerce expanded, roads increasingly needed to cross county lines as well. By 1821, the legislature authorized the Superior Court of Judicature (today’s Supreme Court) to establish highways extending through more than one county.

In 1824, the legislature created a single statewide court of common pleas made up of three judges (a chief justice and two associate justices) and transferred to it the authority previously exercised by the superior court of judicature over multi-county highway layouts.

Throughout these changes, the underlying process remained highly individualized. The statutes continued to require notice to affected landowners, hearings, damage assessments, and compensation. Even major public roads still emerged through a series of specific takings affecting identified parcels of land.

In re Wheeler and the Reorganized Courts

In 1832, the legislature abolished the statewide court of common pleas and replaced it with separate county-based courts of common pleas while transferring existing jurisdiction and pending matters into the new system. Each county court would have two justices, and the justices of the Superior Court of Judicature would serve on those county courts as well in various capacities.

The restructuring raised a practical legal question: when the legislature replaced the prior statewide court with new county-based courts, did the new courts inherit the existing authority to establish highways crossing county lines?

That issue reached the superior court of judicature in 1834 with In re Wheeler.

The case involved a proposed highway running from Hopkinton in Merrimack County into Weare in Hillsborough County. After the Merrimack County court of common pleas approved the layout, a landowner challenged the proceeding. He argued the newly reorganized court lacked authority to establish a highway extending into another county.

Chief Justice Richardson rejected the argument. He explained that the legislature previously had concluded “that the power to lay out highways from county to county should be vested in some tribunal.” The court further reasoned that “if this power is not now lodged in the several courts of common pleas, it is lost.”

The court therefore concluded the newly reorganized courts of common pleas inherited the existing authority to establish multi-county roads.

In re Wheeler illustrates two related challenges confronting early New Hampshire: creating connected public roads across municipal and county boundaries, and reorganizing the judiciary without inadvertently disrupting the legal mechanism used to establish those roads.

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