Opinion
No. 4715.
Argued October 6, 1959.
Decided November 3, 1959.
1. Where the Governor and Council following appointment of a commission to lay out a limited access highway (RSA 236:2) and after defendant had released his rights of access to the State, waived any rights acquired by the release by recommitting the assessment of damages to the commission, such rights of access remained in the defendant and were subject to condemnation proceedings.
2. The fact that the taking of an appeal by the State from the award of the commission indicated a purpose to prosecute its appeal to final judgment, the evidence failed to establish that the defendant was misled thereby or was justified in not entering his appeal, and the voluntary dismissal by the State of its appeal was proper.
MOTION, by the State to dismiss without prejudice its appeal from an award of damages by a commission appointed by the Governor and Council pursuant to RSA 236:2 for property taken for highway purposes. The defendant entered no appeal from this award. The Court granted the motion subject to the defendant's exception. His exception was transferred by Leahy, C.J.
Pursuant to the provisions of RSA ch. 256 and 236:2 the Governor and Council appointed a commission to proceed with the acquisition of land necessary for the layout of the Eastern New Hampshire Turnpike between the rotary in Portsmouth and the easterly end of the General Sullivan Bridge.
Acting under the provisions of RSA 256:1 at the solicitation of a representative of the State the defendant on January 13, 1954, by deed, conveyed to the State "all rights of ingress and egress to the so-called Spur Road in Portsmouth, New Hampshire, for the sum of One Dollar." This conveyance contained the following condition: "as part of the above described consideration, the State of New Hampshire agrees to provide a free road adjacent to and westerly of the easterly side line of said Spur Road, to which road he shall have full rights of access on its easterly side. Said free road replaces and is in lieu of the access above granted to the State of New Hampshire."
Thereafter the Commissioner of Public Works and Highways determined that it was not in the best interest of the State to construct the proposed service road. This action was challenged and this court decided that under the statute he was not required to construct a service road. See Kostrelos v. Merrill, 101 N.H. 317. Following the decision of the Commissioner not to construct a service road the Governor and Council recommitted to the original commission the southern section of the Eastern New Hampshire Turnpike with directions to assess damages for loss of right of access, air, view, and light without regard to the originally proposed service road.
On June 29, 1954, this commission awarded the defendant $8,500 for land and easements taken. The Governor and Council found that this award could not be supported by the evidence and directed an award of $3,600. This award not being accepted by the defendant the State deposited the sum of $8,500 with the clerk of the Superior Court of Rockingham County. On July 22, 1954, pursuant to RSA 233:18 the State appealed from this award to the Superior Court. The State, on October 2, 1958, moved that its appeal be dismissed which was granted by the court below.
Louis C. Wyman, Attorney General, and Jarlath M. Slattery, Assistant Attorney General (Mr. Slattery orally), for the State of New Hampshire.
Charles J. Griffin (by brief and orally), for the defendant.
The first contention of the defendant is that after the defendant released to the State his rights of ingress and egress to the Spur Road, prior to the action of the Governor and Council recommitting for assessment of damages the southern section of the Eastern New Hampshire Turnpike, there were no property rights in the defendant subject to condemnation. His second contention is that the conduct of counsel for the State prior to dismissing its appeal led counsel for defendant to believe that the matter of damages was to be determined by jury.
The State's decision not to construct the service road, resulted in nonperformance of the conditions of the, release. The action of the Governor and Council in recommitting the matter for assessment of damages amounted to a waiver of any rights acquired from the defendant by his release. The rights which remained in the defendant were subject to condemnation proceedings.
Under the provisions of RSA 233:17 the defendant had a right of appeal to the Superior Court within sixty days after the certificate of tender of the award by the commission had been filed with the Secretary of State. This the defendant failed to do.
While the discussions between counsel for the State and defendant prior to the withdrawal of its appeal tended to indicate a purpose to prosecute its appeal to final judgment, the evidence falls far short of establishing that the defendant was misled thereby or justified in not entering an appeal.
The motion of the State to abandon its appeal was analogous to the right to become nonsuit, and such a right is not open to serious question. Upper Coos Railroad v. Parsons, 66 N.H. 181; Webster v. Bridgewater, 63 N.H. 296.
Exceptions overruled.
All concurred.