Harrington v. City of Manchester

• Decision Date: 31 March 1912
• Citation: 82 A. 716,76 N.H. 347
• Parties: HARRINGTON et al. v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

82 A. 716

76 N.H. 347

HARRINGTON et al.

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

March, 1912.

Transferred from Superior Court, Hillsborough County; Wallace, Chief Judge.

Proceedings by the City of Manchester to take land for a street, in which William F. Harrington and others appealed to the superior court from an insufficient award of damages. Transferred from the superior court on an agreed statement of facts. Judgment for appellee.

November 1, 1872, the Amoskeag Manufacturing Company conveyed to the appellants' grantors a tract of land in Manchester described as follows: "Westerly on Elm street, there measuring 100 feet; northerly on Grove street, there measuring 100 feet; easterly on a 20-foot passageway, there measuring 100 feet; southerly on lot No. 1546, there measuring 100 feet. Said granted premises being known as lot No. 1851 as shown on said company's plan of lands in Manchester, N. H, and contains 10,000 square feet by measure." The appellants' grantors immediately inclosed, as a part of the above-described land, the southerly half of Grove street bounding thereon and on the passageway by a fence built on the easterly line of Elm street, the center line of Grove street, and the easterly line of the passageway produced. From the date of the conveyance, the appellants or their grantors have been in actual, open, adverse, uninterrupted possession of the portion of Grove street so inclosed, using the same for the purposes of their business, and always claiming ownership thereto, although conveyances of the lot were made by the appellants' grantors, by deed or mortgage, in the years 1874, 1875, 1880, 1884, 1886, 1887, 1892, 1897, and 1903, and in each case Grove street was named as its northern boundary. In the warranty deed to the appellants, Grove street was not named. No part of Grove street west of Valley Cemetery was laid out as a highway until February 10, 1910, when the board of mayor and aldermen of Manchester, upon petition, laid it out from Elm street to Willow street; the portion inclosed by fence, as above stated, being included in the lay-out, and one cent damages being awarded to the appellants therefor. If the appellants are entitled to no more than nominal damages, the city is to have judgment for costs; otherwise the appellants are to have judgment for actual damages, to be assessed by a Jury, and for costs.

Burnham, Brown, Jones & Warren and Taggart, Tuttle, Burroughs & Wyman, for appellants.

John T. Nixon, George A. Wagner, and Oscar F. Moreau, for appellee.

BINGHAM, J. When the Amoskeag Manufacturing Company platted the lands east and west of the Valley Cemetery, dividing them into a system of lots and proposed streets, and sold the lots, bounding them upon the streets and referring to the plan for further description, they conveyed to the several purchasers, in addition to the lots, the fee in the soil to the center of the street or streets upon which each lot abutted and rights of passage in the other half of such streets (Manchester v. Hodge, 75 N. H. 166, 71 Atl. 864), and such easements or rights of passage in the remaining streets designated upon the plan as were convenient or beneficial, or would be regarded as such and operated as inducements to the several purchases. Douglass v. Company, 76 N. H. 254, 81 Atl. 1086. In addition to conveying these private rights in the proposed streets, the company by thus platting and selling the lots manifested an unequivocal intention to dedicate the streets to public use; and they are therefore to be regarded as dedicated to such use. Walker v. Manchester, 58 N. H. 438; Wilkins v. Manchester, 74 N. H. 275, 67 Atl. 560; Trustees v. Hoboken, 33 N. J. Law, 13, 21, 22, 97 Am. Dec. 696; Hoboken, etc., Co. v. Hoboken, 36 N. J. Law, 540, 545; Atlantic City v. Groff, 64 N. J. Law, 527, 528, 45 Atl. 916; Hohokus v. Railroad, 65 N. J. Law, 353, 356, 47 Atl. 566; Osterheldt v. Philadelphia, 195 Pa. 355, 45 Atl. 923; 3 Dill. Mun. Corp. (5th Ed.) 1739-1745, note; 13 Cyc. 455, 458, 463b.

Whether an acceptance of the dedicated streets is necessary to perfect the gift and vest the right of passage in the public is a matter upon which different conclusions have been reached, due, no doubt, to a failure to distinguish between what is necessary to vest the right of passage in the public and what is necessary to constitute an acceptance, such as will render the city or municipality responsible for the construction and maintenance of the streets. In New Jersey, the courts have kept this distinction in mind, and they state their conclusion in this way: "Where the question is whether the way dedicated has become a public highway, so as to impose upon the public authorities a duty to amend or repair, an acceptance on their part is essential to that end. * * * But an acceptance by the public authorities, or public user, is not essential to conclude the owner from his power of retraction, when his intention to abandon his property and dedicate it to public uses is once unequivocally manifested. In that event, the right of the public to appropriate the lands to the public use, at any time when...