Colebrook Water Co. v. Commissioner of Dept. of Public Works and Highways

• Court: Supreme Court of New Hampshire
• Citation: 114 N.H. 392,324 A.2d 713
• Parties: COLEBROOK WATER COMPANY v. COMMISSIONER OF DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS of the State of New Hampshire. .no. 6679.
• Decision Date: 28 June 1974

Page 713

324 A.2d 713 114 N.H. 392 COLEBROOK WATER COMPANY
v.
COMMISSIONER OF DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS of the State of New Hampshire. .no. 6679. Supreme Court of New Hampshire. June 28, 1974.

Page 714

[114 N.H. 393] Hamblett, Kerrigan, LaTourette & Lopez and John P. Griffith, Nashua, for plaintiff.

Warren B. Rudman, Atty. Gen., and John C. Boeckeler, Atty., concord, for defendant.

DUNCAN, Justice.

Plaintiff Colebrook Water Company was incorporated by Ch. 155, Laws of 1897 for the purposes of providing water for domestic and commercial use to the residents of Colebrook and for firefighting and other uses by the town. Id. § 1. By section 5 of this charter, the corporation was authorized to contract with the town for the provision of hydrants and water to the town, and the town was similarly authorized to contract with the company. Id. § 5.

By contract with the town dated October 5, 1903 the plaintiff undertook to establish

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a water works and distribution system, including bydrants; and the town agreed, inter alia, 'that the expense of changing the original location of any of the hydrants or other fixtures when ordered by the Town shall be borne by said Town'. At some time prior to 1960 the Main Street in Cole-brook was incorporated by the State into the State highway system as part of U.S. Route 3. See Laws 1945, 188:1. Main Street thus ceased to be under the ownership and control of the town.

In 1960, and again in 1963, the State undertook to improve Main Street and in the process required the plaintiff to move some of its mains and hydrants at considerable cost to the plaintiff. In 1963 the company, claiming that the State should be bound by the reinbursement provision of the contract with the town sought reimbursement from the State. On rejection of this claim the plaintiff filed a bill of complaint against the State. The [114 N.H. 394] State moved to dismiss on the ground that the State was not a party to the 1903 contract. The motion was denied, and the case proceeded to trial. On May 5, 1965, the petition was dismissed by the superior court for failure to state a cause of action in contract. RSA 491:8.

The case now transferred to this court arises from a petition for declaratory judgment (RSA 491:22) filed by the plaintiff in 1966 which in addition to relying upon the contract theory of the prior petition, alleges that the company 'owned an interest in the land where its pipes and appurtenances lay by virtue of the (contract with the town)' and is entitled to compensation for the taking of this property interest and for the cost of relocation of the mains and hydrants.

The State moved to dismiss this second petition on alternative grounds (1) that the action is barred by res adjudicata and (2) that the plaintiff has no compensable interest in the public highway. See Opinion of the Justices, 101 N.H. 527, 132 A.2d 613 (1957). This motion was denied by Bownes, J. The State's exception was reserved and transferred to this court by Keller, C.J., upon an agreed statement of facts.

It appears from the agreed statement that the underlying facts and the relief sought are essentially the same in this and in the prior case. The only substantive difference between them is the addition in the present action of the allegations of a taking of the plaintiff's interest without compensation.

"Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive-law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.' Restatement (Second) of Judgments § 61.1 Comment d (Tent. Draft No. 1, 1973).' Lougee v. Beres, 113 N.H. 712, 714, 313 A.2d 422, 424 (1973).

While the record is scanty as to how far the trial of the [114 N.H. 395] first action progressed before dismissal, it is evident that the dismissal for failure to state a cause of action in contract was a dismissal on the merits. It is also apparent that no amendment, or transfer to this court was sought by the company. See Restatement (Second) of Judgments § 48, Comments a & d (Tent. Draft No. 1, 1973). A dismissal for failure to state a cause of action does not rest upon a purely procedural ground, but rather upon the conclusion of the trial judge that the cause alleged is without substantive merit. See Saylor v. Lindsley, 391 F.2d 965 (2d Cir. 1968); A Vestal, Res Judicata/Preclusion V-105-06 (1969). Examples of purely procedural dismissals which do not bar a subsequent action are dismissals for improper venue, or misjoinder of parties, or for lack of capacity to sue. See F. James Jr. Civil Procedure § 11.17 (1965); Restatement (Second) of

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Judgments § 48.1 (Tent. Draft No. 1, 1973). The basis for the oft-stated general rule that a prior judgment for defendant bars a subsequent action on the same claim is that 'fairness to the defendant,...