Farmer v. Town of Hooksett

28 N.H. 244 | Superior Court of New Hampshire | 1854

Eastman, J.

It does not appear from the case, further. than what is shown by the exceptions filed, that anything was done in the premises, upon the application to make Pembroke and the other towns parties to the report. Did the case distinctly show what was done or neglected to be done by the commissioners in regard to making the adjoining towns contribute to the making of the road, the court might judge more accurately of the force of the exceptions. But as the case stands, there is nothing for us to decide upon that point.

We might remark, however, that the question whether the adjoining towns shall be charged with a portion of the expense, is one of fact for the commissioners alone to decide ; and if their proceedings should appear legal and regular, the court would not undertake to review their decision upon that question.

But we gather from the case and the argument of counsel, that after the hearing' before the commissioners and before the acceptance of the report, the bridge, over which the road was laid, and for which $1,700 damages were awarded to the turnpike corporation, was seriously damaged, whereby its value has become diminished from three to eight hundred dollars. And it appears to us that this is a good reason for the recommitment of the report. Until the report is accepted and judgment entered thereon, the bridge remains the property of the turnpike corporation. It does not change hands until the acceptance of the report, and the town should not be compelled to pay for that which it never has, or, under existing circumstances, can receive. A good cause exists for a recommitment of the report. Com. Stat. eh. 53, § 7.

The court would not recommit a report for a new assessment of damages in any ordinary case, where the change could be but trifling ; but where the entire consideration for the award should fail before the report should be returned and accepted, as, for instance, the destruction of the whole property, or such part of it, should fail, as to make it apparent that the town would be paying a considerable sum for what it could never receive, we think there should be a re-commitment for a new assessment.

It is the misfortune of the turnpike corporation that a portion of the bridge has been carried away, but because certain petitioners have seen fit to take steps to make the bridge a free one, and to compel the town to pay the corporation for the same, it cannot be held that the town shall be liable for it until the report of the commissioners shall be accepted and their liability to take it fixed. It is the acceptance of the report and judgment thereon that operates to fix the liability and to transfer the property to the town. Until that is done, the bridge remains in the possession of the corporation, and belongs to them, and all risks of its destruction should be with them so long as they own it. The town could not take the bridge until the acceptance of the report.

The commissioners made an award in damages for the town to pay for what had no existence when their report was returned to the court. Before the report was acted upon by the court the consideration for the award in part failed, and it appears to us that justice requires that there should be a recommitment of the report, that a new award, may be made.

Report recommitted..