Opinion
No. 4849.
Argued June 7, 1960.
Decided July 19, 1960.
1. A lease between a town and an individual of municipally owned real property is a document of the town (RSA 41:58) and as such it is required to be "open at all proper times for public inspection and examination" (Id., s. 61).
2. Where the selectmen are in control of such lease they are under a statutory duty to make it available to interested parties at all proper times and, upon their refusal, mandamus will lie to compel performance of this public duty.
PETITION, for a writ of mandamus by Carmen and Andromache Segre of Waterbury, Connecticut, against the selectmen of the town of Hampton to compel them to permit plaintiffs or their attorney to inspect a lease between Eileen A. Hall and the town and also seeking an order compelling the selectmen to approve an assignment of said lease to plaintiffs or to give a reasonable excuse for failing to do so.
Plaintiffs make the following allegations in their petition. On March 17, 1959, they entered into an agreement with Eileen A. Hall to purchase her property at Hampton Beach situated on land owned by the town and leased to said Hall for a term of years. After due demand, the plaintiffs or their attorney have been refused by the selectmen the opportunity to see said lease.
They further allege that they were advised that an approval by the town of an assignment of the Hall lease to them would be necessary before they could complete the purchase of this property. They have endeavored on several occasions to obtain this approval which was refused by the selectmen, who, although requested to do so, failed to give any reason for their refusal. Plaintiffs allege further that this is public land and that the selectmen's refusal to approve the assignment or to give a reason for their refusal constitutes an arbitrary abuse of their discretionary power in the matter.
Defendants filed a motion to dismiss on the ground that the plaintiffs have no specific legal right to the enforcement of which the remedy of mandamus may be directed against the defendants and therefore have no standing in court to bring and maintain their petition.
The motion was denied by Sullivan, J., who reserved and transferred defendants' exception thereto.
Shaines Brown (Mr. Shaines orally), for the plaintiffs.
Perkins, Holland Donovan (Mr. Donovan orally), for the defendants.
"Mandamus is an extraordinary remedy, granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief." Carrick v. Langtry, 99 N.H. 251, 253. It may be resorted to only for the purpose of enforcing the performance of duties in which the public has an interest. 34 Am. Jur., Mandamus, s. 2, p. 809. It is granted only when the plaintiff has a clear and apparent legal right to the performance, of the act requested. O'Brien v. Fuller, 93 N.H. 221; Maclay v. Fuller, 96 N.H. 326.
Viewed in the light most favorable to the plaintiffs (Langdon v. Sibley, 100 N.H. 373, 375) their allegations may be summarized as follows: Plaintiffs have entered in an agreement with one Hall to purchase her buildings at Hampton Beach situated on land owned by the town of Hampton. There is a lease between Hall and the town which cannot be assigned without the approval of the latter. Plaintiffs have asked the town clerk to see the lease and were refused by order of the selectmen. Plaintiffs tried to obtain the approval of the selectmen to an assignment of the lease to them and when refused have sought the reason therefor which they did not obtain.
The lease between the town and Hall is a document of the town within the provisions of RSA 41:58. As such it "shall be open at all proper times for public inspection and examination." Id., s. 61. There is therefore imposed by this statute upon the town clerk or the selectmen if they are in control of this lease the clear duty to make it available to the plaintiffs or their attorney for inspection and examination at all proper times. Upon their refusal to do so, mandamus is a proper remedy to compel the performance of this public duty. Hill v. Goodwin, 56 N.H. 441, 451; 55 C.J.S. Mandamus, ss. 172, 173; see Villars v. Portsmouth, 100 N.H. 453. Defendants' motion to dismiss was therefore properly denied.
However in the absence of knowledge of what the lease provides with respect to the right to assign, or the right of the lessor to control or prohibit assignment by the lessee (see Machinist v. Koorkanian, 82 N.H. 249, 252; 51 C.J.S., Landlord and Tenant, s. 33, p. 540), we are unable to determine whether or not the plaintiffs are entitled to the further relief sought.
As it is agreed by the parties that the issue of proper service of the petition is not before us, the order is
Exception overruled.
All concurred.