Perrotto v. City of Claremont
| Decision Date | 24 April 1958 |
| Parties | Albert N. PERROTTO et al. v. CITY OF CLAREMONT. |
| Court | New Hampshire Supreme Court |
Shulins & Duncan, Newport, and William E. Nolin, Claremont (Richard C. Duncan, Newport, orally), for the plaintiffs.
Robert B. Buckley, City Solicitor, Claremont (by brief and orally), for the defendant.
These five petitioners are owners of new residences in a recent development located in Claremont known as 'Ridgewood.' The plaintiffs' houses and lots abut Hodgkins Terrace and Perrotto Avenue, being two streets of the development known as 'Ridgewood Section 'A'.' Roger J. and George P. Hardy originally acquired the property and thereafter laid out streets and house lots in two sections, 'A' and 'B'. Maps and plans were prepared and recorded in Sullivan County Registry of Deeds on June 21, 1955 and January 11, 1955.
Hodgkins Terrace and Perrotto Avenue were dedicated to the public use by the Hardys and, pursuant to petitions, were accepted as public highways by the city council of Claremont on January 4, 1956 and March 7, 1956, respectively.
At the time of the acceptance of these highways, both were graveled to a width of 33 feet and to a depth of 4 inches to meet the minimum requirements of the city for new streets. These highways, at the time of acceptance by the city, were capable of use by the general public and were thereafter opened to public travel. The plaintiffs' respective premises were purchased and thereafter occupied by them between November, 1955 and February 24, 1956. In July, 1956, the defendant laid a drainage pipe under the streets and in October of the same year commenced further work on the streets in the development, including the streets in question, which involved '* * * leveling, grading, filling, graveling and surfacing and installation of curbing * * *.' This work continued into November and resulted in the raising of the grade of Perrotto Avenue and Hodgkins Terrace causing the alleged damage to the plaintiffs' properties.
It is the plaintiffs' contention that the work performed was 'repairing' within the meaning of RSA 245:20 and that as a result of the damages occasioned by the city in raising the grade, they are entitled to damages as provided in § 21 thereof. In the alternative, the plaintiffs argue that if the court determines that the proceedings were an original layout as provided in RSA ch. 234, the work performed by the defendant in raising the grade was nonetheless 'repairing' the highway after layout and plaintiffs are entitled to damages.
The defendant claims that plaintiffs' only relief is under the provisions of RSA ch. 234, which governs the layout of new highways or altering any existing highway. It further contends that the work on the highways in question was not 'repairing' but original construction of newly laid out highways and that if any damages resulted, they were waived and not claimed.
Before the enactment of what is now RSA 245:20, a landowner was without remedy for damages resulting from the raising of a highway if it appeared that the act complained of was done in a proper manner for the accommodation of public travel. Benden v. Nashua 1845, 17 N.H. 477. This was a case of first impression in this jurisdiction, as was Callender v. Marsh, 1 Pick., Mass., 418, 432, in Massachusetts. 'Our legislature in New Hampshire, acting upon the suggestion made to the Massachusetts legislature in Callender v. Marsh, supra, or for some other good reason, passed a law to meet this very case, in June, 1848--Laws of 1848, chap. 725--* * *.' Waldron v. Berry, 51 N.H. 136, 143-144. See, also, Vaughn v. New Durham, 93 N.H. 81, 35 A.2d 390; Keating v. Gilsum, 100 N.H. 84, 119 A.2d 344.
The original statute (1848) did not contain the word 'repairing' but provided for damages where there was 'any alteration in any * * * highway by raising or lowering the same.' Laws 1848, c. 725. The words 'in repairing' first appeared in the statutory revision of 1867, G.S., c. 66, § 20, now RSA 245:20. The changes in the wording of this statute were verbal only and no change in meaning was intended. Keating v. Gilsum, supra.
The defendant concedes that it is to highways laid out and constructed and later altered by raising and lowering the grade that the 'repair' statute (RSA 245:20) applies.
RSA 230:1 defines what constitutes highways. 'Highways are only such as are laid out in the mode prescribed therefor by statute, or roads which have been constructed for public travel over land which has been conveyed to a city or town or to the state by deed of a fee or easement interest, or roads which have been dedicated to the public use...
To continue reading
Request your trial
-
State v. Rosier
...use and accepted by the city * * * in which such roads are located.' Laws 1945, c. 188, Part I, § 1. See RSA 230:1. Perrotto v. Claremont, 101 N.H. 267, 140 A.2d 576. The agreed facts do not disclose whether title to the Vaughan Street parking lot was 'conveyed to the city * * * by deed of ......
-
Young v. Prendiville
...C Street was dedicated to public use in 1921 with the filing of the plan and subsequent sale of the lots. RSA 238:7; Perrotto v. Claremont, 101 N.H. 267, 140 A.2d 576 (1958); 6 Powell, Real Propety § 935 (1971). The master found the evidence of public use, as contrasted with use by the abut......
-
Landry v. City of Manchester
...remains unchanged in substance up to the present time. Keating v. Town of Gilsum, 100 N.H. 84, 86, 119 A.2d 344; Perrotto v. City of Claremont, 101 N.H. 267, 269, 140 A.2d 576. The present statute (RSA 245:20) reads as follows: 'If in repairing a highway by the authority of the town the gra......
-
Locke Development Corp. v. Town of Barnstead, 7090
...the owner and their acceptance by the town is another recognized way of creating highways. RSA 230:1 (Supp. 1973); Perrotto v. Claremont, 101 N.H. 267, 140 A.2d 576 (1958). The commissioners were to pass on a petition for a layout of these roads under RSA 234:28 and so stated in answer to a......