A written objection, under P. S., c. 68, s. 10, to the county commissioners' award of land damages from the laying out of a highway is not invalidated by being made in the form of a petition, and entered by mistake as a separate action. Evidence that a person helped to build a cart-path on another's land and sometimes used it is insufficient to establish his right to use it, as bearing on the landowner's damages from the laying out of a highway over it. In estimating damages for land taken for a highway, the increased value of the rest of the owner's land, on account of the better access to it given by the highway, is not to be considered. The court may properly refuse to caution the jury against a particular illegal method of reaching a verdict, if there is nothing to show that the caution is needed.
BLODGETT, J.
(1) The exception to the orders made at the trial term has no merit, and is overruled.
(2) The exception to the statement of the presiding justice to the jury, "that he did not recall any evidence showing that any one had a right to pass over the Edgerly land except the owners," is also overruled. If there was any such evidence, the case fails to disclose it.
(3) The instruction requested as to the special benefit to the plaintiffs from the opening of the new road through their land was properly denied. Carpenter v. Landaff, 42 N.H. 218; Sawyer v. Keene, 47 N.H. 173, 179; Adden v. Railroad, 55 N.H. 413, 414, 417.
(4) The instruction requested as to the mode of assessing damages was correct, as an abstract legal proposition. Jurors cannot determine their verdict by chance. But while the law does not tolerate gambling verdicts, it also presumes that jurors will not return such verdicts, and hence every verdict is presumed to be right and just unless the contrary appears. In the total absence of evidence to rebut this presumption there was therefore no occasion to give the requested instruction and especially in view of the fact that it might well be regarded as an implied imputation upon the intelligence and integrity of the jury. And even if the instruction contained no such imputation, no ground for disturbing the verdict would be presented, because a judge is not bound to instruct the jury upon an abstract proposition; and before he can be required to give particular instructions, there must be evidence, relative and pertinent, on which to found them. Goodrich v. Railroad, 38 N.H. 390; Stearns v. Janes, 12 Allen 582; Coker v. Ropes, 125 Mass. 577.
Exceptions overruled.
CHASE, J., did not sit: the others concurred.