Gee v. the introduction into policies of insurance of astute and perplexing conditions, and to promote rather than discountenance the worst kind of rivalry between rival companies to see which should succeed best in protecting themselves in this way against liability in case of loss, at the expense of others at least equally entitled to the equitable consideration of the court, or at the expense of the assured.

Cheshire County Mutual Fire Insurance Company.

I am of opinion that when the plaintiff, without surrendering or in any way canceling or intending to cancel his policy in the Niagara company, procured another policy on the same property from the defendants, there was a double insurance within the fair meaning of the condition in that policy, and that the defendants cannot be held liable for the loss of the property covered by the Niagara policy.

This is as far as it is necessary to go in the present case. But it is not to be understood that I accept the view that the Niagara policy was rendered invalid by the nugatory act of the plaintiff in procuring a policy from the defendants.

The condition under consideration in the Niagara policy, as already remarked, is not against double insurance, nor is it against any specified act on the part of the plaintiff like the obtaining of an invalid policy in some other company; but it is expressed in terms very vague and very general, against the making of an invalid contract of insurance. What is an invalid contract of insurance? Obtaining a nugatory policy in some other company has been held over and over again not to constitute any contract at all. It confers no rights on the one hand, and imposes no obligations on the other. It is not a contract, it is a mere nullity. How can that which is not a contract, in any legal or even popular sense of the term, properly be called an invalid contract? Suppose the plaintiff had gone through the form of making a contract with some person who represented that he had authority to act for and bind some insurance* company, when, in point of fact, he had no such authority, and in that way obtained a policy which was void by reason of fraud or forgery, or both, on the part of the pretended agent: would that constitute an invalid contract of insurance within the meaning of this condition?

Illustrations and queries of this sort, showing the extraordinary nature of the questions that might arise in the construction of such a condition, need not be multiplied. I only desire to say, that I am not satisfied that the act of the plaintiff brings the case within the terms of the condition, even admitting that the condition is in any view a valid one. But I am not prepared to admit that the condition is a valid one. I do not sup pose it would be contended that a condition, that the policy should be void in case the plaintiff did nothing at all, would be a valid con lition

Gee v. Cheshire County Mutual Fire Insurance Company.

Most certainly it would be void for repugnance. How does it change the legal aspect of the matter to say that it shall be void if he does an act which, in the eye of the law, amounts to exactly the same thing as though he had done nothing at all? The utmost that can be said of it is, that it is a condition against an attempt to procure double insurance; and is it to be held that such a condition is legally consistent with the scope and effect of the contract, as evidenced by the policy? If an attempt, resulting in total failure, may be allowed the effect to avoid a policy, why not allow a simple purpose or intention, formed in the mind of the assured but never put into action, the same force whenever such secret purpose can be discovered? I think I should hesitate before coming to the conclusion that a condition, declaring the policy forfeited if the assured makes an abortive attempt to procure double insurance, is so consistent with the contract to which it is annexed that it can be upheld in giving construction to the whole instrument taken together.

It may be said that an invalid contract of insurance, if believed by the assured to be valid, furnishes the same temptation to a fraudulent destruction of the property by him as though it were valid; and that is doubtless true. But the answer is, that this has not heretofore been regarded as a sufficient reason for holding both policies void, as is shown by the case of Gale v. The Ins. Co. The supposed double insurance would, of course, be evidence more or less cogent for the jury to consider upon the question whether the assured burnt his own property; but it does not furnish a legal reason why a condition which ought to be held void for repugnancy, on a fair construction of the whole instrument in which it is found, should be declared valid.

If these views be correct, they bring us to the same result already reached by another road; for, if the condition against an invalid contract of insurance contained in the Niagara policy be held in operation, the case stands in all respects like Gale v. The Ins. Co.; and there can be no recovery against the defendants, upon the facts stated in the case, except for the hog-house and the clothing, which were not covered by the Niagara policy.

SMITH, J. The question raised in this case was settled in Gale v. The Ins. Co., 41 N. H. 170, which is in conformity with the general current of authorities. It is claimed, however, by the plaintiff, that, inasmuch as the policy of the Niagara company provides that by the existence of any other agreement for insurance, whether valid or not, the insurance in that company shall be void, that policy must inevitably be void and being so void, there is nothing to prevent the validity of the policy

Gilman v. Laconia.

of the defendant company. Even if the first policy be void for that reason, I do not think that fact will make valid the second. At the time the plaintiff agreed with the defendants for the second policy, he had a valid policy in the Niagara company, and that, by the terms of the defendants' policy, rendered the second policy void. Jackson v. Massachusetts Ins. Co., 23 Pick. 418; Clark v. New England Ins. Co., 6 Cush. 342; Barrett v. Union Ins. Co., 7 id. 179. If, then, the Niagara policy became void, as contended by the plaintiff, as the result of his procuring the second policy, the question arises whether both policies are not void.

I do not think, however, that the provision in the Niagara policy that an invalid agreement for insurance shall render that policy void has that effect, for the reasons suggested by my brother LADD, namely, (1) that a nugatory policy constitutes no contract at all — it is a mere nullity; (2) that such a condition is not a valid one, being void for repugnancy, and inconsistent with the scope and effect of the contract.

FOSTER, C. J., C. C. I entirely agree with the views and conclusions of my brethren.

Case discharged.

GILMAN V. LACONIA.

(55 N. H. 130.)

Highway — liability of town to adjoining land-owner.

In an action by the owner of land adjoining a highway against the town, the deciaration alleged that the defendant negligently permitted the highway and drains to get out of repair, so that the water which ought to have gone through the drains overflowed plaintiff's land to his damage. Held, that the declaration stated a cause of action.

A

CTION in the case against the town of Laconia to recover damages to plaintiff's lands, by reason of the negligence of the defendant in permitting an adjoining highway to get out of repair and the drains. thereto to become so filled up that the water which should and otherwise would have been carried off through them, overflowed plaintiff's land and damaged it. The defendant demurred.

Barnard, for plaintiff.

Gilman v. Laconia.

Whipple, Jewell & Smith, for defendants.

LADD, J. I think this demurrer must be overruled. The injury to a land-owner, for which compensation is made by the award of damages upon the laying out of a highway, is such as, in the judgment of the selectmen, county commissioners, or jury, as the case may be, will result to him from the construction and maintenance, in a suitable and proper manner, of a road upon the land taken for that purpose, and nothing more. Nor can there be any doubt but that the selectmen or other tribunal, in estimating such damage, must go upon the ground that in building and maintaining the road reasonable care and skill will be exercised, and a just regard be had to the rights of the owner of adjoining land, as well as the owner of land over which the highway passes. It being certain, therefore, that the land-owner receives no compensation in the original award of damages for injury which may be caused him by an improper or unsuitable construction and maintenance of the road, or by a construction and maintenance that have not a proper regard for his rights, the question is whether he can maintain an action at common law against the town to recover such damage.

That he cannot recover against the highway surveyor or other public officer charged by law with the duty of building or repairing the road, provided such officer has acted in good faith and according to the best of his abilities, is well settled (Waldron v. Berry, 51 N. H. 136); and the statute only provides for an assessment of additional damages when, in repairing a highway by authority of the town, the grade is raised or lowered, or a ditch made at the side thereof. Gen. Stats., ch. 66, § 20. Unless, therefore, the common law furnishes a remedy against the town when either their act or omission in building or maintaining the road causes damage not covered by the original award, and not of a character contemplated by the statute above referred to, the land-owner is subjected to an injury which may amount to a taking of his land without compensation or redress.

It perhaps might not be difficult to show that this would bring the matter within the constitutional prohibition against the taking of private property for public uses without compensation. See Eaton v. B. C. & M. R. R., 51 N. H. 504. But without stopping to inquire how that may be, I think the rights of the land-owner in such case stand too firmly upon the plainest principles of the common law to require the aid of this provision of the Constitution in their support.

The general duty of building and keeping in repair highways is imposed by statute upon towns (Gen. Stats., chs. 66, 68), trd as a

Gilman v. Laconia.

necessary consequence of this duty they have some special rights, amounting to a qualified property, as explained in Troy v. Cheshire Railroad, 23 N. H. 83, and Hooksett v. Amoskeag Co., 44 id. 105, in the land over which they pass. Indeed, for all purposes of construction and repair, towns stand in a position which differs in no substantia. respect from that of an owner of the fee; their control of the premises is so far absolute and exclusive. This, as it seems to me, obviously imposes upon them a duty toward the owner of adjoining land which, so far as regards the consequences of their acts and omissions in building and repairing, is not to be distinguished from the duty of an ordinary adjoining proprietor of land with respect to the premises of his neighbor. The purpose for which the land has been taken is to build and maintain upon it a road for the use and accommodation of the public. To build and maintain such road in a suitable and proper manner must of course always be held a reasonable use of the land, because this is the use to which it has been condemned; and no damage however great arising therefrom can give a cause of action, because all such damage must be presumed to have been included in the original award. But when it comes to the matter of an unsuitable and improper construction, or of a wanton or negligent disregard of the rights of the land-owner in maintaining the highway, I see no reason why the maxim sic utere, etc., should not apply. To hold otherwise would, as it seems to me, be not only gross injustice, but a palpable violation of legal principles that are quite fundamental and elementary.

I have not reached this conclusion without a careful examination of Ball v. Winchester, 32 N. H. 435. The main doctrine there laid down was, that a town is not liable for damage occasioned by the acts of a surveyor of highways, within the scope of his authority, except where such liability is imposed by statute, and he is not to be considered the agent of the town in making repairs upon highways within the town, so as to charge the town for damage occasioned by his illegal acts.

It is not necessary in the present case to inquire into the soundness of this proposition, although I must say I have never been able to comprehend the reasons upon which it rests. The burden of building and maintaining their highways is cast upon towns absolutely by the statute. In the performance of that duty they may elect surveyors if they choose, and as many as they think proper (Gen. Stats., ch. 66, § 5); or they may, if they prefer, authorize the selectmen to procure the work to be by contract. Ib., § 25. If they adopt the former course, as is doubtlesɛ the usual practice, the duties and powers of the officers they thus create are pointed out and defined by statute, the same as are the duties of the VOL. XX.-23