63 N.H. 271 | N.H. | 1884
The defendants contend that the court has no jurisdiction of this petition, and excepted to the order recommitting the report to the commissioners. Chapter 953, s. 5 of Laws 1860, *272 imposed upon every railroad corporation the duty of constructing cattle guards, cattle passes, and farm crossings for the convenience and safety of the land-owners along the line of their road, the place and number to be determined by three justices of the peace in case of disagreement between the corporation and land-owner. The justices were required to make a report of their doings in writing, and file a copy with the town-clerk of the town where the land was situated. In the revision of the statutes in 1867 the county commissioners are substituted for justices of the peace, as the tribunal to which application may be made for establishing cattle guards, cattle passes, and farm crossings, in case the owner of the land and the proprietors of the railroad do not agree upon the place, number, and kind of cattle guards, passes, and crossings to be constructed. Either party may apply to the commissioners, who, after notice, hearing, and examination, are to determine the number, places, time, and manner of construction of the same. The commissioners are required to file their report with the clerk of the supreme court for the county (Gen. Sts., c. 147, ss. 1, 16, G. L., c. 161, ss. 1, 16), and their report is made conclusive. If the proprietors of the railroad do not construct the cattle guards, passes, and crossings within the times limited by the commissioners, and pay the costs adjudged to be paid by them upon request, they forfeit twenty-five dollars for each month's neglect. Section 17. Unlike the proceedings on a petition for partition, or for a new highway, the petition is not addressed to the court, nor entered in court. It is addressed to the commissioners, who proceed to the discharge of their duties without any order or direction from the court. Their report is filed with the clerk, who becomes its custodian, as the town-clerk was the custodian of the report of the justices prior to 1867. The statute does not expressly require the report to be made to the court, and does not expressly provide for a hearing or judgment upon it, or a recommittal of it. As it is made conclusive by statute, a judgment upon it seems to be unnecessary. Like the award of arbitrators upon a common-law submission, it is practical]y a judgment, with the substantial qualities and incidents of a judgment. The penalty of twenty-five dollars per month, imposed upon the proprietors of the railroad for their neglect to construct the crossing within the time and in the manner fixed by the commissioners, is security to the owner of the land that the report will be complied with. It is not necessary to determine whether in any case a report of the commissioners on such a subject call be recommitted. If the power of recommittal is vested in the court, there appears to be no reason why either party should desire its exercise in this case.
The commissioners have reported that a farm crossing from the plaintiff"s premises across the defendants' railroad to the highway is necessary for the convenient use and accommodation of his premises. They declined to lay out a crossing, because, in their *273
opinion, a legal crossing was established in 1848, when the railroad was built, which crossing the defendants constructed, maintained, and kept in repair from 1848 until 1882. Whether prior to the passage of the act of 1850 a railroad corporation was obliged to construct farm crossings was left unsettled in March v. Railroad,
The case has been argued as though a petition for a mandamus to the commissioners to establish a crossing had been filed; and we have therefore considered the case upon the facts stated in the report. The defendants have used the existence of the plaintiff's path or way as a defence against this petition before the commissioners. Wilbur v. Abbot,
All concurred.