Campbell v. Selectmen of Windham

• Decision Date: 12 March 1886
• Citation: 63 N.H. 465,3 A. 422
• Parties: CAMPBELL v. SELECTMEN OF WINDHAM.
• Court: New Hampshire Supreme Court

3 A. 422

63 N.H. 465

CAMPBELL

v. SELECTMEN OF WINDHAM.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 12, 1886.

Appeal from the laying out of a highway by the selectmen of Windham over the plaintiffs land, because he was not notified of the time and place of the hearing by being served with an attested copy of the petition and order, and because an attested copy of the petition and order was not posted at the usual place of town meeting, or left with the town clerk. The plaintiff was not present at the hearing before the selectmen. He now moves that the proceedings before them in laying out the highway may be quashed.

G. C. & G. K. Bartlett, for plaintiff.

The Selectmen, for defendant.

ALLEN, J. The plaintiff, taking an appeal from the laying out of a highway over his land by the selectmen of Windham, now moves to quash the proceedings before the selectmen for want of notice. The proceedings before the board of selectmen are not necessarily quashed for error on appeal. The plaintiff cannot complain if the tribunal to which he has appealed shall hear him upon the matters about which he claims he had no opportunity of being heard before the selectmen. The whole case, so far as it is before the court, is referred to the commissioners, who are to consider the matters in regard to which the appeal is taken, and upon their report the decision of the selectmen may be affirmed, modified, or reversed. Gen. Laws, c. 69, § 12; Peirce v. Portsmouth, 58 N. H. 311.

The error of the selectmen was not one affecting the merits of the case, as in Underwood v. Bailey, 59 N. H. 480, in which the petition was dismissed for the reason that land could not be taken for a highway for the accommodation of an individual without the consent of the owner. To grant the motion made in this case would compel the petitioners for the highway to begin anew, and bring the plaintiff here again on appeal, involving the injustice and vexation of circuity, and furnishing no benefit to which he is legally entitled. Motion denied.

SMITH, J., did not sit; the others concurred.

1 Reported by R. E. Walker, Esq., of the Concord bar.