48 N.H. 157 | N.H. | 1868
The petitioner claims compensation for her land, situate in the town of Benton, in this county, taken by the joint board of selectmen of two towns for the purpose of establishing a public highway over the same. The application is founded upon the 10th section of chapter 53 of the Compiled Laws. This section prescribes "that any person who had no actual notice of the laying out, or altering of any highway, may, within one year after the same shall be opened and made, apply to the court of common pleas for redress, and the court, after no
The rule in New York, as established at law, is not unlike our own. It is there recently decided that where a husband is permitted by his wife to occupy her land, and receive and dispose of the products, the law will not, in the absence of proof of an express agreement that she should share in the products, or that he should account to her, imply such a contract, but will rather regard her as having made a gift of the use of the land to the husband while such occupation continued. Van Seekle v. Van Seekle, 8 Howard’s Prac. 265; vide acts of 1848 and ’49 of that State.
Under our practice, the notices which issue pursuant to the statute law to landholders, over whose lands a highway is to be laid, should be reasonably certain. A notice addressed to an owner of lands, over which a highway is to be laid out, signed by the chairman of each board of selectmen, and giving the name of the first petitioner, and the termini of the proposed road, and stating that the petition had been placed in their hands for their action, and the name of the towns through or in which the same was proposed to be laid, and also the time and place appointed for the purpose of hearing and deciding upon said petition, and upon the claims of land owners and others interested therein, would seem to be a sufficient compliance with the statute law on this subject. Tappan’s Petition, 24 N. H. 43. The name of the owner of the land to be taken should be rightfully inserted in the notice. In a petition to assess damages, where the notice was directed to A. B. and wife, damages could not also be assessed for injury to land held by A. B. in his own separate right. Thayer v. Worcester, 10 Cushing 151. Nor is it enough to notify one tenant in common, for one tenant cannot bind the others by any agreement made with him, but all tenants in common, must be notified. Notice to one tenant in common can affect his own share only. Merrill v. Berkshire, 11 Pick. 269. A notice to the husband' alone, and an award of damages made' to him under the circumstances disclosed, cannot and should not bind the wife. It does not appear that the board making the award took into consideration the whole damages to the land. It may be that the award was for what was supposed to belong to the husband alone. The law does not constitute the husband the agent of the wife in this class of cases. The taking of property for public uses must in all cases, when lawfully taken, be on notice to the true owner. It is competent for the legislature to say what notice shall be sufficient, but the requirements of the statute must be strictly pursued in giving the notice. Owners of Ground, &c., v. Mayor of Albany, 15 Wend. 374.
It cannot be urged with propriety here that the petitioner has lost any of her legal rights by not attending at the place of hearing when she was not invited. If she saw the notice directed to her husband, this fact did not require her to make an agent of her husband to act for her in the premises. We are of the opinion that the petitioner is entitled
Case discharged.