56 N.H. 502 | N.H. | 1876
Lead Opinion
HILLSBOROUGH COUNTY. The nature of this proceeding must not be lost sight of, because the questions are raised by a form of pleading used in actions at common law. It is an appeal under the statute from the laying out of a highway, and the assessment of the plaintiff's land damages. After a long and tedious litigation, the defendants propose to surrender the main thing that has been in controversy, or, at least, the thing that has caused all the strife, by voluntarily discontinuing the road. The plaintiff says he has no objection to this; but still, if the apple of discord is to be removed, he wants it done with all the formalities required by law. He will not be relieved from the burden of the road, the laying out of which he has been struggling to defeat, unless the defendants shall first ask and obtain leave of the court to discontinue it; — and so we are invited, as it seems to me, to consider a very nice matter of punctilio indeed. I do not think it can be worth while to spend *504 much time in this case upon the question of the defendants' legal right to discontinue the road without the consent of the court, inasmuch as such consent could certainly be had for the asking, and nobody's rights or interests are practically involved.
But what becomes of the other branch of the case, — that is, the appeal from the assessment of damages, upon the discontinuance of the road, — is another question.
The original assessment of damages by the mayor and aldermen was made upon the basis that the road was to be built, and used, over the plaintiff's land. Before it is either made or used, the enterprise is abandoned, and the threatened injury to the plaintiff averted by a discontinuance. It certainly cannot be said by the court, as matter of law, that the laying out, under such circumstances, was no damage to the plaintiff, although no land is now to be taken, and no injury to be caused to his other land by the construction and use of a highway.
The question is, Can it be determined in this same proceeding — that is, upon the original appeal — whether he has, in fact, suffered damage, even although the road is discontinued, and is not to be built? and, if so, how much?
It is not easy to understand why the defendants should object to such a course, saying, as it would, the expense and delay of another proceeding; — but, inasmuch as they do object, it is necessary to inquire whether there is any law whereby it is forbidden.
The statute provides that the selectmen "shall assess the damages sustained by each owner of the land on other property taken for such highway" — Gen. Stats., ch. 61, sec. 15; and, in reference to appeals, the commissioners shall consider and report upon the matters in regard to which the appeal is taken, as set forth in the petition. Gen. Stats., ch. 63, sec. 12. Now, the matter here is the damage caused by the laying out. To be sure, the elements of damage are not the same on the appeal, after the road has been discontinued, as those which entered into the computation of the mayor and aldermen; but I think the matter may, nevertheless, be fairly said to be the same, — so that, instead of there being any law prohibiting the course proposed, the statutes are clearly broad enough to tolerate if not require it.
As to costs, although it is provided that if the plaintiff recover no more damages on the appeal than was awarded by the selectmen, he shall pay costs — Gen. Stats., ch. 63, sec. 13; still, this statute was obviously intended to meet the usual and ordinary case of appeals when the road has been or is to be built; and I think the broad discretion as to costs conferred upon the court by Gen Stats., ch. 214, secs. 1, 2, may and should be so exercised as to do justice between the parties, in view of the entirely new aspect put upon the matter by the discontinuance.
The practical application and effect of these views in the present case are, that the parties may have all matters in dispute between them, as well as all questions of cost, adjusted and finally settled in the circuit court. *505
Concurrence Opinion
The plea alleges, in bar of the further maintenance of the action, that the defendants have discontinued the highway, and have never entered upon or done any acts upon the land.
The plaintiff replies, that the county commissioners, to whom the petition was referred, laid out the highway aforesaid anew, and that the court had not consented to the discontinuance.
He also replies, that, notwithstanding the discontinuance, the laying out of the highway is a damage to him.
The defendants, not objecting that the replication is double, demur generally.
The first matter in the replication appears to be insufficient, because it is not alleged that the report of the commissioners has been accepted by the court, — which, I suppose, is necessary, in order that the highway should be established by the court. On this part of the pleadings, then, I should understand that the plaintiff must fail, because there is not enough alleged to show that the highway had been established by the court when it was discontinued by the town.
The other branch of the replication seems well enough, because it is the assessment of damages which has been complained of, and there is perhaps no very sufficient reason why the damages actually sustained by the proceeding, if any, may not be assessed on this appeal.
It may be, that, notwithstanding the defect in the replication, the report has been accepted, and the way established by the court. If such be the case, I think that, as terms of amendment, the defendants ought to have leave to move the court to consent to the act of the town discontinuing the highway, which, as all the parties seem desirous that the highway should be discontinued, it is not likely the court would object to.
It is not often that the learning and ingenuity of counsel are expended on special pleadings in cases of this sort. As both parties seem to be satisfied with it, and neither has made any motion to reject the pleas as inappropriate, I have endeavored to solve the problems presented. The practical result, I believe, is the same announced by my brother LADD.
Concurrence Opinion
Proceedings were commenced in this case by a petition to the mayor and aldermen of the city of Manchester for the establishment of a new highway, wholly within the limits of said city, under the provisions of ch. 61, sec. 1, Gen. Stats.
The mayor and aldermen laid out the highway, and assessed the plaintiff's damages. From the decision of this tribunal, both as to the laying out of the highway and the assessment of his damages, the plaintiff appealed to the supreme court, under the provisions of ch. 63, sec. 10, Gen. Stats.
Subsequently, the county commissioners, to whom had been referred the plaintiff's appeal, reported a laying out of said highway, and assessed the plaintiff's damages.
The question is now presented, whether the judgment of the mayor and aldermen was vacated by the plaintiffs appeal, so that the subsequent action of the commissioners established a new, and, in a certain sense, *506 independent highway, which the court alone had power to discontinue; or whether, after the plaintiff's appeal, the judgment of the mayor and aldermen still existed, suspended and in abeyance merely, and the jurisdiction of the matter remained with them, so that, without the leave of the court, they had the power to discontinue the highway.
What was the effect of the plaintiff's appeal upon the judgment of the mayor and aldermen? Did it oust them of jurisdiction?
The effect of all appeal, said BELL, J., in Wallace v. Brown,
But, at the point where the control of the appellate court commences, it would seem that the control of the inferior court should cease, otherwise there might be a serious conflict of jurisdiction and authority. A cause ought not to be buffeted about by the orders of independent tribunals. As the inferior court cannot proceed to enforce its judgment after it has become suspended by the appeal, so, also, it should not be permitted to reverse the suspended judgment, because, although the mischief to the party aggrieved might not be so serious, still, important rights would be affected, if in no other respect, certainly in respect of costs properly and reasonably incurred.
For this reason it is held, that, after a case has been appealed, a judgment by default cannot be rendered below before the procedendo has been sent down. Messenger v. Marsh,
After all appeal, no order can be passed in the case which in any contingency can possibly prejudice the appellant. Ohio Life Ins. Co. v. Winn, 4 Md. Ch. 253. An appeal suspends all proceedings until it is decided. Stone v. Spillman,
The decree of a judge of probate is vacated by an appeal, and a new decree, affirming or reversing the former one, must be made by the appellate court. Mathes v. Bennett,
Our statutes are not in conflict with the principle of these decisions. With regard to probate appeals, it is declared, — "Every decision of a judge, so far as the same shall be affirmed or unaltered by the supreme court upon appeal, shall be considered to have been in force from the time the same was made or passed by the judge of probate" — Gen. Stats., ch. 188, sec. 12; and in respect to appeals from the decision of selectmen, it is provided that "the commissioners shall consider and report upon the matters in regard to which the appeal is taken, as set forth in the petition; and the decision of the selectmen may be affirmed, modified, or reversed by the court, according to the report of the commissioners. Gen. Stats., ch. 63, sec. 12.
In both cases the subject-matter of the controversy is brought by the appeal within the jurisdiction of the appellate court (Perkins v. George,
In both cases there is a new decree, — a decree and judgment by the appellate tribunal; and with the authority of the appellate court to make such final decree, the inferior court during the suspension of its vitality cannot interfere.
In the present case, then, there was a laying out of the highway by the supreme court, and it "cannot be discontinued without the consent of said court." Gen. Stats., ch. 66, sec. 2.
The demurrer admits that the plaintiff has sustained damages by the laying out of the highway. The proceeding before this court is an appeal from the assessment of those damages, and the statute requires that the court shall assess his damages by a jury, and issue execution therefor. Gen. Stats., ch. 63, secs. 13, 14.
It is only "in cases where execution may not be issued by the supreme court for damages on account of a highway" that the person entitled thereto may recover them by action of debt. Gen. Stats., ch. 64, sec. 7.
To send the plaintiff out of court for the relief provided in such a contingency would be inconvenient, burdensome, and unnecessary.
Demurrer overruled. *508
