24 N.H. 43 | Superior Court of New Hampshire | 1851
It is found by the case that the petition was duly filed with the clerk of the court of common pleas, and notice thereof given to the town of Dover, agreeably to the requirements of law, and that at the January term of said court,
It is well settled that a default after notice admits every material and traversable allegation properly set forth in the declaration or petition. This is the established doctrine of the courts. Foster v. Smith, 10 Wend. Rep. 378, and cases cited; Bates v. Loomis, 5 do., 134, Mr. Greenleaf says, if a material averment, well pleaded, is passed over by the adverse party without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby conclusively proved. 1 Greenl. Ev., § 27; Dodge v. Morse, 3 N. H. Rep. 232; Briggs v. Dorr, 19 Johns. Rep. 95. And where the allegations in a declaration or petition are thus admitted by a default, it is not competent for the party to give evidence in denial of them. The default will conclude him from questioning the truth of the averments. Foster v. Smith, before cited. See, also, Strange 112; 1 Bos. and Pull. 308.
There was an averment in the petition in the present case, of the presentation of a written petition to the selectmen of Dover, to lay out the highway described in this petition, and of them refusal. That averment was clearly material and traversable. The existence of those facts was necessary to give the court jurisdiction of the petition. And after the default, it was no longer competent for the town to question them. They were conclusively proved, and we are not aware that any other party is entitled to come in and controvert the facts thus admitted. The town is the party entitled by the statute to notice of the pendency of the petition, and in practice no other party is notified. The omission to notify land-owners of its pendency certainly cannot vitiate the proceedings. Their rights are secured by notice of the subsequent proceedings, giving them opportunity to be heard bn the question of damages before the commissioners.
We are not aware that it is necessary that the names of the same petitioners should be upon the petition presented to the court of common pleas that may have been upon the prior petition presented to the selectmen. The statutory provisions do not in
The jurisdiction of the court to entertain the petition, and to take cognizance of the subject matter of it, is conclusively shown by the record evidence in this petition; and so, also, upon reference to the other evidence which is recited in the case, we think the jurisdiction to be equally well established. The first ground of objection to the report cannot therefore prevail.
We regard the second ground of objection as being equally invalid.
The notice to Newton E. Marble was in the usual form, and was sufficient. It informed him that the petition of Stephen Toppan and others for a new highway in Dover had been referred to the road commissioners of the county of Strafford, and gave him information of the time and place appointed “ for the purpose of hearing and determining upon said petition, and upon the claims of land-owners, and others interested therein.”
It is made the duty of commissioners to give notice to the owners of land,' in the same manner as selectmen are required to give notice to the owners of land. Rev. Stat., chap. 51, § 2. It is required that selectmen “ shall appoint a time and place of hearing, and shall cause notice thereof in writing to be given to the first petitioner, and to the owners of land over which the same may pass.” Rev. Stat., chap. 49, § 2. Now, what does this provision require to be done ? That must be determined in view of the matter to be acted upon. The notice must be reasonable, under the circumstances. By the rule of court the petition presented to the court must give the termini of the way prayed for, without fixing any intermediate bounds. Rules of Court, 81. Now, when such a petition is referred to the road commissioners,. it is not in their power usually to determine, and in fact, we see not how they are ordinarily to know, over whose land the way prayed for is to be laid out; it is not shown by
We are all clearly of opinion, that the exceptions relied upon in this case for setting aside tbe report, are wholly insufficient for that purpose; that tbe ruling of tbe court below was correct, and that there must be'
Judgment on the report.