Grand Trunk Ry. Co. v. Town of Berlin

• Decision Date: 27 July 1894
• Citation: 68 N.H. 168,36 A. 554
• Parties: GRAND TRUNK RY. CO. v. TOWN OF BERLIN et al.
• Court: New Hampshire Supreme Court

36 A. 554

68 N.H. 168

GRAND TRUNK RY. CO.

v. TOWN OF BERLIN et al.

Supreme Court of New Hampshire. Coos.

July 27, 1894.

Petition by the Grand Trunk Railway Company for a writ of certiorari to quash proceedings of the selectmen of the town of Berlin in laying out a highway across petitioners' railroad. Granted, and proceedings quashed as to petitioners.

In 1855 the Atlantic & St. Lawrence Railroad Company, under authority from the state (Laws 1854, c. 1597), took and paid for a right of way in Berlin, four rods wide, for a branch railroad from their main line to the Berlin Mills. The branch was built, and has ever since been maintained. It, with other property of the company, was leased to the plaintiffs for the term of 999 years. In June, 1891, the selectmen of Berlin, upon petition, laid out a highway about 40 feet wide, across the branch railroad, along the course of a highway laid out in 1830, the boundaries of which had become unknown, for the purpose of straightening and widening such highway. A copy of the record of the laying out is a part of the case. From it and other evidence, it appeared that no notice of the hearing before the selectmen upon the petition was given to the plaintiffs, no damages were awarded, paid, or tendered to them, and they had no knowledge of the laying out until the trial of Watson v. Railway Co. (the next reported case) 36 Atl. 555, at the October term, 1892, and never assented to the same. The selectmen knew that the plaintiffs were, and for 20 years had been, operating the Atlantic Company's railroad, and supposed they had a right of way for the branch. In Watson's action, the plaintiffs were charged with causing a defect in the highway on October 16, 1891, by placing cars within its limits, in consequence of which he was injured. Watson is a defendant in this action. The prayer of the petition is that the laying out of the highway be quashed. Such judgment is to be rendered as the facts warrant.

Bingham & Bingham and R. N. Chamberlin, for plaintiffs.

Twitched & Libby, for defendants.

CHASE, J. The plaintiffs, as lessees of the Atlantic & St. Lawrence Railroad Company's property, had a right to maintain and operate the branch railroad within the limits of the way taken for the purpose. Blake v. Rich, 34 N. H. 282; Bailey v. Sweeney, 64 N. H. 296, 9 Atl. 543. The easement could not be incumbered by laying out a highway across the way without pursuing the course required for taking the estate of an individual for a like use. Gen. Laws 1878, c. 67, § 13; Northern R. R. v. Concord & C. R. R., 27 N. H. 183, 195, 196; Opinion of the Justices, 66 N. H. 629, 33 Atl. 1076. Among the requisites were a petition addressed to the selectmen, due notice of the time and place of the hearing upon it, and an assessment and payment or tender of the damages for the rights taken. Gen. Laws 1878, c. 67, §§ 1, 6, 19; Id. c. 70, § 4. The plaintiffs were entitled to notice and damages. Gen. Laws 1878, c. 67, §§ 5, 19. The selectmen had jurisdiction of the subject-matter, but, because of the failure to give the required notice of the hearing, they had no jurisdiction of the plaintiffs. The laying out was not for this reason void as to all persons, but as to the plaintiffs only, and in a qualified sense. The plaintiffs might confirm it or waive their objections to it on account of want of notice. Failure to institute proceedings to set it aside within a reasonable time after they learned of it would be a waiver. State v. Richmond, 26 N. H. 232; Gay v. Smith, 38 N. H. 171, 174. While the law does not...