19 N.H. 343 | Superior Court of New Hampshire | 1849
There has been a great degree of uniformity in the language of the different statutes by which the powers and duties of committees of the courts of common pleas, and of road commissioners, have successively been defined, from the statute of 1829 to the one now in force. By the first named statute, petitions for tile discontinuance of highways were not in terms required to be referred to a committee; but the practice soon prevailed to refer such, as well as petitions for laying out and altering highways; and the act of 1840, providing for the choice of road commissioners, in accordance with that practice, required all petitions legally coming before the court of common pleas, and relating to roads, to be referred to that board, and gave to their report the same force with the report of the committees previously required to be appointed by the court. The act further provided that no highway should thereafter be laid out, widen.•ed or straightened, otherwise than as therein pointed out.
The nature and extent of the jurisdiction of the road commissioners, in all these cases, is sufficiently indicated by the statutes. They are charged with inquiry into all the facts and circumstances affecting the expediency of granting, wholly or in part, the petition referred to them, and with a final and conclusive judgment and discretion as to their force and bearing; and, in short, it is their duty to report to the court the judgment which is to be rendered upon the petition. The court has no power to revise the doings of the commissioners, for the purpose of ascertaining whether they have judged wisely and correctly as to these particulars, nor for any purpose but to see that their proceedings have been regular, and that fraud or surprise has not been used to vitiate their results.
There is one particular in which the court interposes a check or qualification upon the discretion of the commissioners. When a road has been laid out, and a petition for leave to discontinue has been preferred, before the same has been opened for public travel, the commissioners to whom the petition is referred are required to report “ whether any
This rule was adopted as an equivalent for the old practice of referring all such petitions to the committee that laid out the road, for the plain purpose of preventing applications of that sort from assuming the character of appeals from one board to another, and of guarding the court from the scandal of recording different and conflicting judgments at different times, upon the same state of facts, leading to interminable vicissitudes and litigation. The rule really imposes no check upon the commissioners, except to prevent them from directly reviewing and reversing the judgment of their predecessors, upon the same case.
In requiring them to report whether any and what changes have occurred, their nature, and how they affect the case, the rule enables the court to see whether such a change has intervened as justifies the action of the board; whether there are elements in the new case that distinguish it from the old. Of the importance of these elements, and how far they ought to influence the minds of the commissioners, they are, as in all other things affecting their judgment, the sole and conclusive judges.
This is necessarily so. It is easy to see that changes which to the court, with their limited means of forming a correct opinion, might seem of very small importance, might, to the commissioners, whose mode of proceeding is such as to give them very different and better means of judging, seem to be of quite another character.
The court, therefore, will go no further than to inquire whether changes have actually occurred in the case which may affect the expediency of opening the road. Of the possible changes in the circumstances of a country yet new,
The first one indicated is, that a new highway has been built in and by the town of Hampstead, between two points described in the report. It is insisted that the building of this road is no change of circumstances which ought to have been considered, because the road was actually laid out at the time the first examination was made. But we think there is a marked difference between the laying out and the construction of a road. It is easy to see that if the road had been actually constructed at the time of the first examination, the commissioners, although not regarding it the best, might have deemed it as affording such amount and degree of accommodation to the public, that they would have decided not to lay out the one prayed for, whereas the mere laying out of the town road was no pledge to the public that it would ever be built, and imposed no burden upon the town which they had not the power to put off by their own act. Besides, it is not always easy to foresee the extent to which a road not finished may actually serve the public; and it not unfrequently turns out that very erroneous estimates have been made, sometimes exceeding, and at other times falling below the actual business of the road, when opened for public use. And this last observation sufficiently vindicates the second cause for the discontinuance, mentioned in the report, which is the completion of the new road in Atkinson. But the report does still more, in showing that the two roads last named are a substantial equiva
Without following the report further, and even admitting the sufficiency of the objections taken to the other alleged changes, we think that the report has, with sufficient clearness, described changes that have occurred since the road in question was laid out, and shown how they affect the case. That they were of sufficient weight to justify the conclusion to whieh they came, we are not permitted to doubt, because it is not our province to decide.
As to the sixth, seventh and eighth exceptions taken to the report, we are unable to satisfy ourselves that it is necessary for the commissioners, if they find that changes of sufficient importance have occurred, since the road was laid out, to inquire when they occurred. We think the towns have a right to the benefit of any events that may have happened to exonerate them from the burden which the commissioners deem an unnecessary one at the time of the hearing. This would seem to be just to all parties, and is certainly within the terms and the reason of the rule which the court have adopted. Should the period at which the change may have occurred require the consideration of the court, on the subject of costs, it is a matter which may be set right without much difficulty.
The power of adjourning the proceedings from day to day, pertains to the road commissioners. To that power is necessarily attached the prerogative of judging as to what is a sufficient cause for adjourning, or for refusing a motion for adjourning. It is wholly impossible for this court to say whether the state of the weather, or the condition of the earth, at the time the commissioners made their .examination, was such as to interpose any material obstacles to the proper discharge of their duties or not. They were the proper judges of such a question, and in the absence of all surmise of corruption, we shall not attempt to revise their decision of it. The objections must be overruled, and
The report accepted,
