Private roads, so called, have in general been sustained, or condemned, according as courts have or have not found that the public have a right to use them, even if not compelled to repair them. Underwood v. Bailey, 59 N.H. 480; Proctor v. Andover, 42 N.H. 348, 360. Whatever is a public use for the exercise of eminent domain, is a public use for the exercise of the taxing power.

Since there is no claim of fraud, the first issue which we shall consider is whether the commissioners made a "gross mistake" within the meaning of RSA 234:39 in their determination that a public need existed for the establishment of the road. Underwood v. Bailey, 59 N.H. 480; Thompson v. Company, 78 N.H. 433, 436. Without detailing the evidence, it appears there was testimony that the road would be of value in fire fighting, that it would be used by the selectmen in getting to the property for the purpose of assessing it, that the power company would use it in reaching their lines, and that persons wishing to get out timber on property remote from the road would also find it both convenient and necessary. There was substantial evidence that the proposed road was the only practical route to this section of the area. In addition to this, the selectmen and the county commissioners.

" Starr Burying Ground Ass'n v. Association, 77 Conn. 83. The plaintiff bases her objection to the constitutionality of the statute invoked by the defendants upon the elementary principle that private property cannot be taken in invitum for private use. Const. Part. I, art. 12; Concord Railroad v. Greely, 17 N.H. 47; Underwood v. Bailey, 59 N.H. 480. If this were the purpose of the statute the objection would be fatal. But the power conferred upon towns by s. 6, c. 40, P. S., which the act of 1913 gives the defendants, is only to take land for a public use.

Article 12 of the bill of rights forbids, by implication, the taking of private property for private uses without the owner's consent. Concord R. R. v. Greely, 17 N.H. 47; Underwood v. Bailey, 59 N.H. 480. Unless, therefore, the use which the plaintiff proposes to make of the defendant's land is a "public use," within the meaning of those words as used in the bill of rights, the legislature had no power to grant to the plaintiff the right to take the land or an interest in it without the defendant's consent. Whether the contemplated use is of a public character, is a question of law. Concord R. R. v. Greely, supra; Amoskeag Mfg. Co. v. Head, 56 N.H. 386, 399.

REMICK, J. Highways are established, altered, and discontinued for the public good. Underwood v. Bailey, 56 N.H. 187; S.C., 59 N.H. 480. It must be presumed that the public good required the discontinuance in question. Smith v. Boston, 7 Cush. 254, 256. Public good involves, almost invariably, individual and sectional injury.

The petitioners in effect ask for a new highway to accommodate public travel between two points. The public convenience or necessity is the important fact to be established to authorize the taking of private property for highway purposes (Underwood v. Bailey, 59 N.H. 480); but when that fact is found, the location of such a way as will most conveniently accommodate the public travel between the termini in the petition is the way which the statute authorizes the selectmen to lay out. If they find that the public convenience will be best promoted by laying out a road over half of the route proposed by the petitioners, the verbal distinction that such a road is not the road prayed for would not be legally true. As the petitioners represent the public, the highway they ask for must necessarily be the most convenient one under all the circumstances for communication between the localities indicated in the petition.

G. L., c. 69, s. 12; Peirce v. Portsmouth, 58 N.H. 311. The error of the selectmen was not one affecting the merits of the case, as in Underwood v. Bailey, 59 N.H. 480, in which the petition was dismissed for the reason that land could not be taken for a highway for the accommodation of an individual without the consent of the owner. To grant the motion made in this case would compel the petitioners for the highway to begin anew and bring the plaintiff here again on appeal, involving the injustice and vexation of circuity, and furnishing no benefit to which he is legally entitled.