Locke Development Corp. v. Town of Barnstead, 7090

• Decision Date: 28 November 1975
• Docket Number: No. 7090,7090
• Citation: 349 A.2d 598,115 N.H. 642
• Parties: LOCKE DEVELOPMENT CORPORATION v. TOWN OF BARNSTEAD.
• Court: New Hampshire Supreme Court

Page 598

349 A.2d 598

115 N.H. 642

LOCKE DEVELOPMENT CORPORATION v. TOWN OF BARNSTEAD.

No. 7090.

Supreme Court of New Hampshire.

Nov. 28, 1975.

Frederic T. Greenhalge, Concord, by brief and orally, for plaintiff.

Johnson & McManus, Dover (Anthony A. McManus, Dover, orally), for defendant.

LAMPRON, Justice.

Petition by the plaintiff to the superior court under RSA 234:28 for laying out as class V highways several existing roads located at Locke Lake Colony in Barnstead. The selectmen failed to act on a similar petition dated January 17, 1972, filed with them under RSA 234:1 (Supp. 1973). The voters of Barnstead at the town meeting of March 11, 1972, defeated a warrant article which would have authorized such a petition to the selectmen to lay out these roads as highways. The present petition was referred under RSA 234:31 to the county commissioners who took a view and held hearings on May 24 and June 1, 1973.

The commissioners filed an initial report which was objected to by the town. After a hearing the Court (Keller, C.J.) recommitted the matter to the commissioners for further findings. The amended report was approved by the court and a judgment entered in accordance with its recommendations. Defendant's exceptions thereto were reserved and transferred. The main issue to be decided is whether the judgment entered by the court in accordance with the recommendations of the commissioners in their reports that the roads described in plaintiff's petition, as amended, be laid out subject to certain provisos contained in the first report was properly entered. We hold that it was for the reasons hereinafter stated.

A laying out or locating and defining the limits of a road in the manner prescribed by statute is a proper method of creating a public highway. RSA 230:1 (Supp. 1973). This laying out is not limited to the creation of a new road but includes also the making into public highways private roads already in existence. Amoskeag Industries v. Manchester, 93 N.H. 335, 41 A.2d 917 (1945). The layout must be undertaken upon a petition to the selectmen of the town as correctly contended by the defendant. Hoban v. Bucklin, 88 N.H. 73, 78, 184 A. 362, 365 (1936). Such a petition was filed by the plaintiff identifying the roads to be laid out as public highways. It was introduced as an exhibit in the present proceeding.

Among the factors to be considered by the selectmen, or the commissioners in this case, in arriving at their decision are the public need for the highway and the burden the highway will impose on the town. Amoskeag Industries v. Manchester supra. The following facts are encompassed in the agreement of the parties and the findings of the commissioners which are supported by the evidence. The plaintiff's development contains 1,216 lots. Two hundred ninety-one houses have been built or are in the process of being built. About twenty-nine children from this development attend the town schools. About twenty-five or twenty-eight of the owners are year-round residents. For the year 1972, approximately $143,729.40 of the total town tax of $344,594 was generated by the Locke project or about forty-one percent of the tax revenue. There was conflicting testimony as to the present conditions of the nineteen or twenty roads in the project sought to be laid out as highways. The testimony also varied as to the standards to be met and the cost of bringing these roads to comply therewith. There was evidence as to the adequacy or the need of fire and police protection as well as school bus transportation, and the need of highways for public convenience. The plaintiff's waived all damages pertaining to the layout.

The commissioners viewed the proposed highways...