Bean v. Warner

| N.H. | Jul 15, 1859

Eastman, J.

The Revised Statutes, chapter 49, section 13 (Comp. Stat., ch. 52, sec. 16) provide that when a highway is laid out by selectmen, they shall assess the damages sustained by each “owner” of land required for such highway. The “ owner ” is to receive the damages for his rights which are taken, and the award is to be made to Mm.

At the time this highway was laid out, and the damages assessed, Ordway, to whom the award was made, was not the owner of the land; and the award to him was, therefore, erroneous.

By section 9, chapter 50, Revised Statutes (ch. 53, sec. 9, Comp. Stat.) it is provided that any person who may think himself aggrieved by the assessment of damages by the selectmen, may, within one year after the road is opened, petition the Court of Common Pleas for redress ; and the court, after due notice, may award such damages as may be just, and costs to either of the parties, in their discretion, and issue execution therefor.

The tenth section of the same chapter is as follows: “ Any person who had no actual notice of the laying out or altering of any highway, may, within one year after the same shall be opened and made, apply to the said court, as provided in the preceding section, and the court, after notice as aforesaid, shall award damages and costs, and issue execution therefor, as is therein provided.”

In Dalton v. North-Hampton, 19 N. H. 362, it was held that a petition, presented under the ninth section, by a party aggrieved by the assessment of damages by the selectmen, was a petition relating to roads, within the meaning of section fourth of the same chapter, which provides that all petitions relating to roads shall be referred to the road commissioners, and that it might be referred by the court to the commissioners. In that case it was said by Woods, J., that “ the road commissioners have peculiar means, in their powers and' their modes of proceeding, to investigate with success the merits of such a petition, which the Court of Common Pleas do not possess, and which a jury cannot use in ordinary cases without great inconvenience and expense.”

In Baker v. Holderness, 26 N. H. (6 Fost.) 110, it was held that the Court of Common Pleas might, in its discretion, refer the question upon such petitions to the road commissioners, or direct the damages to be assessed by a jury.

The proceedings under the tenth section are the same as those under the ninth — the only difference in the two sections consisting in the provision for different cases. And when a petition is presented under the tenth section, the court may refer it to the road commissioners.

Ve think this petition may fall within the provisions of the tenth section, although it might, perhaps, come within the ninth. No notice was given to the petitioner of the laying out of the highway; and there is no suggestion that the petition was not seasonably presented. It is true that it is not one of the cases that ordinarily arise under that section, but the provisions are broad enough to reach this case. They would seem to have been intended to cover all cases where a person’s land is taken for a highway, and no notice given him of the laying out. It is therefore unnecessary to compel the petitioner to seek redress by other proceedings. The Common Pleas had jurisdiction of the petition, and their action in referring it to the commissioners was, according to the practice of the court, sanctioned by authority.

The exceptions must he overruled.