69 A.2d 871 (N.H. 1949), 3861, Waisman v. Manchester
| Docket Number | 3861 |
| Citation | 69 A.2d 871,96 N.H. 50 |
| Date | 06 December 1949 |
| Parties | Anna L. Waisman v. Manchester |
| Court | New Hampshire Supreme Court |
Page 871
Case discharged.
All concurred.
OPINION
Page 872
[96 N.H. 52] The questions reserved by the Trial Court, and the plaintiff's vigorous assertion that the proceedings before the board of mayor and aldermen should be vacated upon certiorari without putting her to the expense of trial of her appeal, invite consideration of the nature and scope of the appeal; for it is established law that where an adequate remedy is available upon appeal, certiorari will not be granted. Cloutier v. State Milk Control Board, 92 N.H. 199, 203, 28 A.2d 554; Grand Trunk Railway v. Berlin, 68 N.H. 168, 170, 36 A. 554; Logue v. Clark, 62 N.H. 184; Boston & Maine Railroad v. Folsom, 46 N.H. 64.
The proceedings are brought under the provisions of R. L., c. 51, s. 90, permitting the taking by municipalities of "any land required for public use." The same section provides that the land "may be taken, the damages assessed, and the same remedies and proceedings had as in the case of laying out highways by selectmen." Accordingly, the petition was properly filed with the board of mayor and aldermen, whose powers and duties in the premises were the same as those of selectmen of towns. R. L., c. 64, s. 11.
The statutes relating to the laying out of highways by selectmen provide among other things that "selectmen... upon petition may lay out any... highway... for which there shall be occasion." Highway Law of 1945, Part 5, s. 1. (Laws 1945, c. 188, s. 1.) No complaint is made that the plaintiff was not notified of the hearing (s. 2), and she participated in it through counsel. The statute directs [96 N.H. 53] that at the hearing "the selectmen shall make a personal examination of the several routes proposed... shall hear all parties interested who may attend and any evidence they may offer..." S. 8. "They may lay out such highway over any ground they may deem
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most suitable..." S. 9. They are also charged with the assessment of damages. S. 12.
Appeals are provided for by section 24 of Part 5. "Any person aggrieved by the decision of the selectmen in the laying out... of a highway or in the assessment of damages therefor, may appeal therefrom to the superior court..." Such appeals are to be referred to the county commissioners (s. 31) who are required to appoint a time and place for hearing (s. 34) and "shall make examination of the routes and hear parties interested, and shall have like powers as selectmen in such case." S. 38. By section 39 it is provided that "there shall be no appeal from their findings in the matter of occasion for the laying out of the highway... in the absence of fraud or gross mistake." They are required to report to the court (s. 43), and interested persons may be heard in relation to the report. S. 49. The decision of the selectmen may be affirmed, modified or reversed according to such report. Ib.
The procedure thus provided by the Highway Law of 1945 differs in no material respect from the procedure which has long been followed here in highway cases. There can be no question under our decisions but that the plaintiff's appeal entitles her to the equivalent of a new trial before the commissioners. This was expressly decided in Bickford v. Franconia, 73 N.H. 194, 195, 60 A. 98, where it was held that on appeal "the case is to be heard anew" and that: "In highway appeals and generally, the appeal vacates the judgment in the court below, and the judgment in the appellate court is a distinct and original judgment." Likewise the statutes leave no question that the appeal lies not only from the assessment of damages, but also from the decision of the selectmen "in the laying out... of a highway." S. 24. The laying out by selectmen involves determination of the "occasion" (s. 1), which from the earliest days has been interpreted to require consideration of "the public exigency and convenience" and the rights of affected landowners. Dudley v. Cilley, 5 N.H. 558, 560; Stinson v. Dunbarton, 46 N.H. 385. Upon appeal the commissioners are charged with determining the same issues. Ss. 38-42. That they shall make "findings on the matter of occasion...
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