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Transferred from Superior Court, Hillsborough County; Young, Judge.
Petition by Amoskeag Industries, Inc., against the Board of Mayor and Aldermen of the City of Manchester to lay out certain streets. The petition was granted in part and to such decree and to denial of its motion to dismiss the petition and to set aside the court's findings, defendant excepted, and the case was transferred by the court.
Exceptions overruled.
Petition, under R.L. c. 91, § 2, to lay out certain streets. November 10, 1942 plaintiff introduced and presented to the defendant 17 new highway and grade petitions for streets in the mill yard of the plaintiff situated in Manchester. Defendant refused to lay out said new highways and plaintiff appealed to the Superior Court. Trial by the Court, who, after two hearings and views made among other findings, the following controlling ones:
‘In 1936 the plaintiff acquired all of the property of the Amoskeag Manufacturing Co. and immediately began, by sale and lease, to divide it into smaller units, so that at the time of the hearing (July, 1943) there were over eighty different enterprises within the yards, mostly manufacturing industries of a diversified character (some for storage only) and all together employing approximately nine thousand employees.
‘The whole property, exclusive of the water power development sold to the Public Service Co. of New Hampshire, and including the taxable property such as machinery and stock in trade of the individual owners and tenants, was assessed in 1943 for the purpose of taxation for nearly four and one-half million dollars.
‘Material, supplies, equipment and finished product in most instances goes to and from the various industries by truck.
‘The area to be served by the proposed streets includes the land occupied by buildings and the yards adjacent to the various mills and buildings. It lies on both sides of the Merrimack River, the larger number of buildings and the greater number of enterprises being on the easterly side. There are two canals, upper and lower, on the easterly side, which run nearly parallel with the river and with Canal Street, which is the easterly boundary of the property. There are two streets running easterly and westerly through it, with bridges over the river, viz., Granite Street and Bridge Street. Bridge Street connects with McGregor Street on the west side of the river, which is one of the westerly boundaries of the property. Access to Canal, Granite, Bridge and McGregor Streets would give outlets to now existing public streets from the various yards.
‘The public that would be accommodated by the proposed streets would be made up in part by the employees and those who might have occasion to assist them in transportation or visit them at their place of employment, salesmen and customers doing business with employers, teamsters, truck drivers and laborers moving such things as may be needed in and out and probably a small class who might find some of the new streets a short cut or way of convenience. A survey conducted by the police department for three days whereby traffic was observed at several of the gates showed a substantial number of pedestrians, trucks, and passenger cars in and out.
‘The aggregate length of the proposed streets is about three miles. There was evidence to the effect that if they were all laid out it would require an extra police cruiser and cost an additional annual outlay of between ten and twelve thousand dollars to police them, and also require an initial expenditure for extending the fire alarm system of almost seventeen thousand dollars. The court is of the opinion that by careful planning it might be possible to reduce these figures somewhat. There was no evidence as to the probable cost of scavenger service, but it did appear that for a period of four years the plaintiff had expended for such service (not including the removal of ashes) including cost of snow removal and repairs, upkeep and lighting of the streets, as now used, sums varying from five to over seven thousand dollars per annum.
‘The cost of building the proposed streets, or such of them as are necessary, would be substantially less than would be the case if they were to be built in a new development, because in most places there are usable foundations, and the land damage would be negligible. There are bridges over the canals and places which require railing which might add to the city's legal liability.
‘Taking into consideration all of the factors of the case and all of the evidence presented the court is of the opinion that public necessity requires that some of the streets petitioned for should be laid out and that as to others the...
