Opinion
No. 3451.
Decided December 7, 1943.
The purpose of P.L., c. 80, ss. 32, 33, is to compensate the landowner for injury to his land caused by certain alterations in the adjoining highway, since recompense for such injury was not included in the original award for the taking of his land when the highway was laid out. The remedy for assessment of damages under such statute as a result of alterations in a highway is not available to one whose land lies wholly outside the territorial limits of the town in which the alterations were made, since no part of that land was taken when the highway was first built.
PETITION under P.L., c. 80, ss. 32, 33 (R. L., c. 96, ss. 32, 33), for the assessment of damages alleged to have been caused by the alteration of the grade of a certain highway and "by changes made in drainage, ditches and culverts in said highway." The material facts, reported by a master, are as follows:
The road in question leads from New Durham Ridge to Farmington and is referred to as the Ridge Road. The changes in the road of which the plaintiffs complain were made by New Durham and did not extend beyond the town line. The plaintiffs' farm is located on this road at the foot of the hill, and all but a small section of pasture land is in Farmington. The notice to New Durham to assess the plaintiffs' damages, as provided in section 32, was duly given.
The Ridge Road in time of rains, freshets, and thaws carries a large volume of water from New Durham Ridge down to the Farmington line. In 1938 side drains were dug out, and in several places water was turned off the road into adjoining pasture land, where it drained into a small natural brook which flowed across the farm of the plaintiffs. The property which the plaintiffs claim has been damaged does not adjoin the section of the Ridge Road where the alterations were made, but lies in Farmington. No damage is claimed for the small section of the plaintiffs' farm adjoining the Ridge Road in New Durham.
At the conclusion of the plaintiffs' evidence the defendant moved to dismiss the petition. The master's recommendation that the motion be granted was rejected by the Court, who denied the motion subject to the defendant's exception. All questions of law raised by this exception were transferred by Lorimer, J.
Cooper, Hall Grimes, for the plaintiffs.
Errol S. Hall, for the defendant.
Section 32 of chapter 80 of the Public Laws provides that "If in repairing a highway by the authority of the town the grade is raised or lowered, or a ditch made at the side thereof, whereby damage is occasioned to any estate adjoining, the selectmen, on application in writing of the owner, shall, on notice to and hearing of the applicant, view the premises and assess the damages, and, within thirty days after the application, file the same, with their doings thereon, in the office of the town clerk for record." Section 33 provides that "If the owner is aggrieved by the assessment, or if the selectmen neglect to file the same within thirty days as aforesaid, he may petition the superior court for an assessment or increase of the damages; and like proceedings shall be had thereon as in case of laying out a highway."
The purpose of these statutory provisions (originally Laws 1848, c. 725) is to compensate the landowner for injury to his land caused by certain alterations in the adjoining highway, since recompense for such injury was not included in the sum awarded him for the taking of his land when the highway was laid out. Hinckley v. Franklin, 69 N.H. 614, 615. See also, Gilman v. Laconia, 55 N.H. 130, 131; Bartlett v. Bristol, 66 N.H. 420, 422; Bigelow v. Whitcomb, 72 N.H. 473, 480; Locke v. Laconia, 78 N.H. 79, 81.
In the case of Gilman v. Laconia, supra, it is said that the statute "provides for an assessment of additional damages," and in Bartlett v. Bristol, supra, the Court declares: "The evident purpose of the legislature in enacting the statute was to give a party injured the same remedy for the assessment of these damages, in substance, as is provided by statute on an original laying out."
Since the land here involved lies wholly outside the territorial limits of the defendant town, it is evident that no part of that land could ever have been taken by the defendant when the road was first built. It follows that the plaintiffs are not entitled to "additional" damages when they have never received, and were never entitled to receive, any damages at all.
Plaintiffs' counsel in their brief suggest that the "limited conception of a highway as ceasing at town lines is not in keeping with either fact or reason" and call attention to various statutory methods of laying out highways other than by petition to the selectmen. The pertinency of this suggestion is not altogether clear, since the jurisdiction of a town over its highways does not ordinarily extend beyond the limits of the town, and there is here no claim that the Ridge Road was laid out by the joint action of the selectmen of New Durham and Farmington (R. L., c. 90, s. 21).
No question is raised concerning the plaintiffs' right to maintain a common-law action for the invasion of their property.
Petition dismissed.
All concurred.