Does the statute providing for compensation to abutters, for damages caused by a change in the grаde of a highway, apply to changes in that portion which was theretofore unwrought and unused for travel ?
Much stress is laid upon the technical meaning of the word “ grade ” ; and it is argued that there can be no change of grade until the way has been reduced from its naturally uneven condition to one of fairly uniform rise and fall; that an unwrought way is ungraded, and that the grade cannot be changed until it exists. Cases are to be found wherein this construction has been applied to statutes as to changes of grade; but it is not necessary to consider them here, for the precise and technical meaning of this word is not an essential part of our statutе. The original act applied to “ any alteration in any street or highway ”... caused “ by raising or lowering the sаme.” Laws 1848, c. 725, s. 1, In the revision of 1867, the language now in use was first adopted, but the change was understood to be onе of form and not of substance. Com’rs’ Pep., GL S., c. 67, s. 18; Gf. 8., c. 66, s. 20; P. S., c. 73, s. 24.
The question is, whether such a change as was here made was аn alteration, within the meaning of the statute. The object of the act appears to be to compensate the landowner for changes made in the surface of the land after the highway has been built. The compensation originally paid him for the taking of land for the road was computed upon the basis that the road would be built in a manner suited to the then existing circumstances. Ro
we
v.
Addison,
34 N. H. 306, 312, 313. It was the duty of the town to so build the road, and it must be presumed, certainly as against the town itself, that it did so. The road as built being what the circumstances called for, was what was considered in the original award of damages. Before 1848, if the circumstances changed so that more grading must be done, or further alterations in the surface must be made, the landowner was withоut remedy.
Benden
v.
Nashua,
17 N. H. 477, and cases cited. It was presumably because of this rule that the act of 1848 was passed.
Waldron
v.
Berry,
51 N. H. 136, 143, 144. When thе town built the road and left the portion now used for a sidewalk in its natural condition, it established, as against itself, what was the proper construction there. This the landowner could rely upon, and, if changes were subsequеntly made, she was entitled to compensation.
Cambridge
v.
Commissioners,
Must the change be of the whole width of the highway, or the whоle of the part theretofore wrought, or is a substantial change of any part sufficient ? Sidewalks are parts of highways concerning which grades may be established which differ from that of the portion used for teams. P. S., c. 50, s. 10, far. XIY. Thе same section of a highway may have different grades, one for the street proper and anothеr for the sidewalk. That á change in either would be within the provisions of the act of 1848 cannot be doubted. It is therefore immaterial, except as to the extent of the injury, that the grade of the street outside the sidewalk has not been altered.
The cases which hold that work done upon manifestly un-' finished streets cannot be сonsidered as changes, have no application here, as we understand the facts in this case. Thе work of constructing a sidewalk along an ancient highway' cannot be considered a part of the оriginal building of the road.
The petition to the city council was sufficient. Under'it the plaintiff might' have proved all damages caused by alterations made before it was filed. Sawyer v. Keene, 47 N. H. 173. Acting under this petition, the plaintiff presented оnly a part of her claim to the city council, and now seeks to be heard as to the whole, upon appeal. The petition being only a general statement,-the city council could not know what was intеnded to be included, except by the statements of the plaintiff. The case is not unlike that of a writ contаining the common counts,— the claim being made definite by a specification.
The provision of the statutе, that the city council shall give notice to and hear- the petitioner, requires him to make his claim there. There is no authority given to assess damages except upon a hearing. The claim must be presented to the lower tribunal before an appeal can be taken. Until that tribunal has acted, or has failed to act when properly applied to, there is nothing to appeal from, and the appеllate coui’t has no jurisdiction. The plaintiff cannot be aggrieved by the failure to allow a claim which shе did not present for allowance. If this rule applies to the claim as a whole, it must apply to seрarate and distinct items which are litigated in one proceeding. Rich v. Eldredge, 42 N. H. 246. The damages claimed for the chаnges made in the years before 1895 were distinct items which should have been presented to the city council. As this was not done, there has been no action upon them by the inferior tribunal. As to them, there was nothing to appeal from; and this court, *617 having no original jurisdiction of the matter, cannot entertain the appeal.
The petition being general, it may be shown by evidence outside the record what issues were presented for determination thereunder. Hearn v. Railroad, 67 N. H. 320, 322, and cases cited; Burns v. Burns, 68 N. H. 33.
Case discharged.