Cram v. City of Laconia

• Decision Date: 06 September 1901
• Parties: CRAM v. CITY OF LACONIA.
• Court: New Hampshire Supreme Court

51 A. 635

71 N.H. 41

CRAM

v. CITY OF LACONIA.

Supreme Court of New Hampshire. Belknap.

Sept. 6, 1901.

Exceptions from Belknap county.

Petition by Edwin L. Cram against the city of Laconia. Trial by jury, and case transferred on defendants' exception to a denial of its motion to dismiss the petition. Exception sustained, and judgment for defendants.

In April, 1894, the plaintiff purchased a parcel of land, abutting on Gold street in that portion of Laconia known as "Lakeport," and erected thereon a building adapted for the business of selling groceries, etc. At the time the plaintiff purchased the land and erected the building, Gold street extended in an easterly direction from the plaintiff's premises to a junction with Union avenue, anothar street in the Lakeport district of Laconia. April 15, 1898, the city council discontinued the easterly end of Gold street, from the point of its junction with Union avenue westerly toward the plaintiff's premises, thereby destroying that junction, and leaving the remainder of Gold street dependent upon lateral streets for connection with Union avenue. The portion of Gold street upon which the plaintiff's property abutted remained undisturbed, and other, but more circuitous, highway communication between Gold street and the general system of streets was left to the plaintiff. The discontinuance did not deprive the plaintiff or the public of access to his property, but made it less convenient, by increasing the distance to be traveled in many cases. All that the evidence tended to show, and all that the plaintiff claimed, was that some of the people residing in Laconia, Gilford, Alton, etc., northerly of the junction of Gold street with Union avenue, traded at the plaintiff's store prior to the discontinuance, and that afterward, by reason of the discontinuance and the destruction of the junction, such people, in passing to and from Gold street, were obliged to go by way of other streets, on which were other stores where goods like those kept at the plaintiff's store were on sale, and that, as a consequence, trade at the plaintiff's store fell off, and his property was rendered less desirable for business purposes, and was reduced in value. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendants moved to dismiss the petition. The motions were denied, and the defendants excepted.

Stone & Shannon, for plaintiff.

Jewett & Plummer, for defendants.

REMICK, J. Highways are established, altered, and discontinued for the public good. Underwood v. Bailey, 56 N. H. 187; Id., 59 N. H. 480. It must be presumed that the public good required the discontinuance in question. Smith v. City of Boston, 7 Cush. 254, 256. Public good involves, almost invariably, individual and sectional injury. In the make-up of society, there are such diverse and conflicting interests that it is impossible to so regulate governmental action as to confer universal benefit The general welfare is all that is attainable. To secure this is the chief object of government and to submit to It, however injurious, with or without compensation, according to circumstances, is the primary obligation of citizenship. For general injuries, or those which result indirectly from the mere operation of a public improvement, the law allows the citizen no compensation. These are part of the price he pays for the protection and privileges of government. It is only when the act of the public inflicts upon him some special, peculiar, and direct injury that he is entitled to damage. The principle underlying these observations is elementary, is not disputed, and controls the present case. If the plaintiff's damages are special, peculiar, and direct, he has a right of action to recover them. If general and indirect, the law affords him no remedy. The rule sounds simple enough, and is easily stated. The difficulty lies in its application,—in determining whether the plaintiff's damages are general or special. This is the sole question in the present case. To the solution of this question, the statute under which the petition is brought lends no aid. It simply provides that "the damages sustained * * * by the discontinuance of a highway * * * may be assessed," etc. Pub. St c. 72, § 4. Taken literally, the statute is broad enough to allow damages for all injuries, whether special or general. But; it has been limited by construction, in accordance with the principle already stated. In Re City of Concord, 50 N. H. 530, the court held: "It could not have been the intention of the legislature to give damages, upon a discontinuance, to any individual for inconvenience experienced by him in common with all the rest of the community. If the inconveniences suffered * * * differ only in degree, and not in kind, from those endured by the public generally, he cannot recover damages therefor. 'But if he suffers a peculiar and special damage, not common to the public,' and that damage is the direct consequence of the discontinuance, he may recover therefor under the statute." This construction was approved and followed in Town of Candia v. Chandler, 58 N. H. 127-129, where the court again declared that only peculiar and special damages are recoverable under the statute. As a result of the construction placed upon it by these cases, the statute must be viewed as if it read, "Damages which are not common to the public, but are peculiar and special, and the direct result of the discontinuance, may be assessed," etc. While In re City of Concord and Town of Candia v. Chandler thus serve to limit the general terms of the statute, and bring us back to the general principle stated at the outset, viz., that only special, peculiar, and direct damages are recoverable, they furnish no clear and definite rule by which to determine whether damages in a given case are general and consequential, or peculiar, special, and direct, and whether the plaintiff's injuries fall within the one class or the other. The almost stereotyped statement to be found in the cases, that for damages differing only in degree, and not in kind, from those endured by the public at large, there can be no recovery, while for peculiar and special damages, not common to the public, recovery may be had, is so general and indefinite that, without the aid of the cases applying, defining, and limiting it, it is, at best a most perplexing guide, as is evidenced by its fruitfulness as a source of contention, and by the difficulty which courts have encountered in its application,—a difficulty they have often testified to (Smith v. City of Boston, 7 Cush. 254; Davis v. Commissioners, 153 Mass. 218, 223, 26 N. E. 848, 11 L. R. A. 750; City of Chicago v. Burcky, 158 Ill. 103, 42 N. E. 178, 29 L. R. A. 568, 49 Am. St. Rep. 142; Heller v. Railroad Co., 28 Kan. 625), and doubtless more often experienced.

No case has come to our attention in this jurisdiction where the court has made application of the rule to a claim for damages arising from a discontinuance of a highway. In Re City of Concord, 50 N. H. 530, the rule was stated, but the court expressly declined to make any application of it in the then stage of the case. So in Town of Candia v. Chandler, 58 N. H. 127, there was a restatement of the rule, but no application of it to the specific facts. In neither case did the court undertake to decide whether the damages alleged were special or general, direct or consequential, recoverable or nonrecoverable. But while there has been in this jurisdiction no direct application of the rule in any case for damage arising from the discontinuance of a highway, there are cases in our Reports relating to the laying out of highways where the court has differentiated general and consequential from special and direct damages in a way to throw light upon the subject, and aid solution of the question before us. In Re Mt. Washington Road Co., 35 N. H. 134, damage was claimed not only for injury done to the plaintiff's land by taking a portion of it for a highway to the summit of Mt. Washington, but also for injury to his livery business and property by diversion of travel from the plaintiff's bridle path. The court, by Perley, C. J., said: For damages "not caused by the taking of the land for the road, but by the change which the public improvement introduces into the course of business, * * * the public is not bound to make compensation. * * * The damages awarded to the landowner are limited to the direct injury done to the land.* * * If * * * the public improvement, by causing a change in the course of business, * * * should occasion a loss, * * * he must bear that loss in common with others who are in a like situation. The circumstance that the public may require some interest in his private property to accomplish the public object gives him no claim to indemnification for a loss not in any way caused by the taking of his property, but by the operation of the public improvement." These observations seem peculiarly applicable to the present case. Here, as there, the damage claimed is not for the taking of the plaintiff's land, or any direct invasion of his property, but, as distinctly appears from the case, for loss of business and depreciation of property resulting from a diversion of travel occasioned by a legitimate public improvement.

We are also helped to a correct understanding and application of the rule by the cases in this jurisdiction relating to the set-off of benefits where land was taken for highway purposes. The general rule on this subject is the same as the rule in respect to the allowance of damages, viz., that only special and peculiar benefits can be taken into consideration. Applying this rule, it has been repeatedly held in this state that benefits from improved facilities of communication, favorable diversion of travel, increased trade, and appreciation of property, resulting from the establishment of a new highway, cannot be set off against...