Berlinguette v. Stanton

• Decision Date: 03 December 1980
• Docket Number: Nos. 79-344,79-345 and 80-210,s. 79-344
• Citation: 120 N.H. 760,423 A.2d 289
• Parties: Albert L. BERLINGUETTE, et al. v. Charles R. STANTON, Mayor, City of Manchester et al. HAMPSHIRE HARBOR, INC. v. AMOSKEAG SAVINGS BANK.
• Court: New Hampshire Supreme Court

Page 289

423 A.2d 289

120 N.H. 760

Albert L. BERLINGUETTE, et al. v. Charles R. STANTON, Mayor, City of Manchester et al.

HAMPSHIRE HARBOR, INC. v. AMOSKEAG SAVINGS BANK.

Nos. 79-344, 79-345 and 80-210.

Supreme Court of New Hampshire.

Dec. 3, 1980.

Edward L. Minnich, Jr., Plaistow, by brief and orally, for plaintiffs Berlinguette, Pagliarullo, and Stangikas.

Bussiere & McHugh, Manchester (Kenneth R. McHugh, Manchester, orally), for plaintiff Hampshire Harbor, Inc.

Elmer T. Bourque, Manchester, City Sol. (Thomas R. Clark, Manchester, orally), for defendant Charles R. Stanton, Mayor.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Theodore Wadleigh, Manchester, orally), for defendant, Amoskeag Savings Bank.

Wiggin & Nourie, Manchester (Gordon A. Rehnborg, Jr., Manchester, orally), for defendants City of Manchester and Amoskeag Savings Bank.

DOUGLAS, Justice.

The issue raised by these consolidated cases is whether the plaintiffs' complaints state a cause of action upon which relief may be granted. As to the city of Manchester and the Amoskeag Savings Bank, we hold that they do; as to Mayor Stanton, we hold that they do not.

The plaintiffs are businessmen who operate small shops on Manchester Street in Manchester. Around the beginning of March 1978, the defendant Amoskeag Savings Bank, applied to the city of Manchester for permits to demolish a building on the northeast corner of Elm and Manchester Streets. The city issued permits, and the bank began to tear down the building. Shortly after the work began, the city determined that the demolition created an unsafe condition and closed Manchester and Elm Streets in that area to vehicular traffic for about thirteen weeks.

Claiming that the demolition work caused them to lose business, the plaintiffs Berlinguette, Pagliarullo, and Stangikas filed a bill in equity for an injunction and damages against Charles Stanton, in his capacity as mayor of Manchester, and Amoskeag Savings Bank. Flynn, J., granted the defendants' motions to dismiss because the injunction question was mooted by the end of the demolition and because the plaintiffs had an adequate remedy at law. He later gave the plaintiffs time to file a reserved case. Then the plaintiffs brought new actions at law against the city of Manchester and the Amoskeag Savings Bank. Contas, J., granted the defendants' motions to dismiss the new complaints on the ground that they failed to state a cause of action.

Hampshire Harbor, Inc. also brought an action for damages caused by the demolition against Amoskeag Savings Bank, which filed a motion to dismiss. Because of the similarity of the issues to those in the Berlinguette case, Pappagianis, J. transferred the question without ruling to this court. All cases were consolidated for oral argument on the question whether the complaints state a cause of action upon which relief may be granted.

Pleadings are an indispensable tool. They should be "simple, concise and indicate the theory on which the plaintiff is proceeding so that the opposing party can adequately defend." Morency v. Plourde, 96 N.H. 344, 345-46, 76 A.2d 791, 792 (1950). In this jurisdiction, pleadings are treated liberally. "(E)mphasis will be placed on the simple merits of the controversy rather than the form of the pleadings in which they may be presented." Hackett v. Railroad, 95 N.H. 45, 46, 57 A.2d 266, 267 (1948). If counsel can understand the dispute and the court can decide the controversy on its merits, the pleadings are adequate. Morency v. Plourde, supra at 346, 76 A.2d at 792.

The Berlinguette complaint against the city of Manchester alleges that the granting of a demolition license constituted a taking of property by a public authority for a private purpose. Although the complaint is not artful, we disagree with the defendant city that it states no cause of action. The plaintiffs contend that the permit should have required the bank to conduct the demolition in such a way that it would not have required the city to close the street during business hours. We have repeatedly held that an owner of land abutting a public street or highway "has a private right of access in that street or highway, which includes not only the right to go to and from the land but also the right to have the premises accessible to others." Capitol Plumbing & Heating Supply Co. v. State, 116 N.H. 513, 514, 363 A.2d 199, 200 (1976); Tilton v. Sharpe, 84 N.H. 43, 146 A. 159 (1929); Cram v. Laconia, 71 N.H. 41, 51 A. 635 (1901). In Capitol Plumbing & Heating Supply Co. v. State, supra at 515, 363 A.2d at 201, we noted that a landowner who suffered a temporary loss of access for three and one-half years was entitled to damages even though there was loss only of the legal access, not of actual access. Because the complaint states a...