Boscawen v. Canterbury

23 N.H. 188 | Superior Court of New Hampshire | 1851

Eastman, J,

We infer, from the facts stated in this case, that the petition to perambulate and establish the lines was an amicable proceeding between these towns; and that one of the principal objects of the proceeding was to have the line established, upon the supposition that it might be of material service, in relieving the towns from the expense of building the bridge required by the report of the road commissioners in 1848. If we are correct in this, and we See no reason to doubt it, the original petitioners for the road had a direct interest in defeating the acceptance of any report, establishing the line between the towns, which might have the effect to prevent the building of the bridge ; and upon giving proper security, for the payment of all such costs as should be caused by their interference, we think they should have leave to appear, aud be heard on the question of the acceptance of the report. Entertaining these views we will proceed to examine the objections filed.

These proceedings were founded upon that section of the statute, which provides that, when the selectmen of adjoining towns shall disagree in renewing and establishing the lines and bounds of such towns, the court of common pleas, for the county in which the town first incorporated, or paying the highest tax. as aforesaid, is situate, upon petition and after notice to the-other town interested, shall, by themselves, or a committee for that purpose, examine said disputed lines, and their decision, thereon shall be final, and the court may order either or both towns to pay .the costs, as they may think just. Rev. Stat., chap. 37, § 6.

The first objection is, that these proceedings are null and void, because the selectmen of the first incorporated town must first commence proceedings, in order to give the court jurisdiction of the subject matter. It appears that Canterbury wgs incorporated in 1727, and Boscawen in 1760, and that the petition was made by Boscawen. Were there, then, no other facts before us, the objection would be well founded, for Canterbury would appear to be the first incorporated town. But the case finds that that part of Canterbury which is next to the line mentioned in the report, consisting of a gore of land adjoining the Merrimack river, was constituted a part of that town in 1765. Consequently, Canterbury, with its present limits, was established in 1765, and that portion of it which raises the dispute, had no incorporation till that time.

We think the proceedings were well enough 'instituted by Boscawen and that this objection must be overruled.

The third objection also cannot be sustained., The statement makes no provision for a'notice to any party, on the presentation of the petition or afterwards, except to the other' town interested. Although the original petitioners for the road might be interested, to the extent that no report should be made that would tend to defeat the building of the bridge, yet this fact could not be legally known to the committee. They were to be governed by their commission and the statute of the State, and were not authorized to make any individuals parties to the proceedings who were not specified, either in the one or the other. The claim, then, by the original petitioners, that they were entitled to notice from the committee, and a hearing before them, .is not well founded.

But we find ourselves constrained to hold, upon a decision -made in our own court, that the second- objection is well taken; notwithstanding the many authorities that sustain the legal position taken in the report, and the high respect we entertain for the profound legal acquirements of the very able committee who made it. The decision to which we refer, was made upon the petition of Green and others for a highway in Plymouth and Holderness, Grafton county, 1843, on which the bridge over the Pemigewasset, at Plymouth, was laid out. It is understood that it was held, in that case, that the line between the towns was the centre of the river, measuring from bank to bank, and not a line dividing the water running in the stream into equal quantities. And we are not aware that there was anything in the facts of that case, that could change the principle as applicable to this. According to the doctrine of that decision, the line established by the committee, as set forth in the report in this case, was not the true one between the towns, and the report must consequently be rejected.^

Report rejected.