Jarvis v. Town of Claremont
Decision Date | 06 December 1927 |
Docket Number | No. 2181.,2181. |
Citation | 139 A. 747 |
Parties | JARVIS v. TOWN OF CLAREMONT. |
Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Sullivan County; Matthews, Judge.
Trespass by Russell Jarvis against the Town of Claremont. Verdict for defendant, and plaintiff brings exception. Judgrqent for plaintiff.
Trespass for carrying away and selling parts of two trees belonging to the plaintiff. Trial by the court. Verdict for the defendant.
Upon October 10, 1925, a large elm and a beech tree standing upon the plaintiff's land were blown down by a very unusual windstorm and fell across a highway of the defendant town in such a way as to block completely all traffic thereon. Two of the selectmen immediately proceeded to cut away enough of the limbs of these trees to permit the passage of travelers and upon two subsequent days the highway agent of the town completed the work of clearing the highway and removed the firewood thus produced to the basement of the town hall, where it was held as security for the expense of removal, and subsequently sold after the plaintiff had refused to pay this expense. At the close of the evidence the plaintiff moved for a verdict as a matter of law. This motion was denied and the plaintiff excepted. The court (Matthews, J.) found that "the highway agent in removing the incumbrance, retaining it in his possession, and selling it when the plaintiff failed to pay the cost of removal, acted reasonably and in accordance with his duty as laid down in the statute."
Barton & Shullns and J. M. Barton, all of Newport, for plaintiff.
Henry S. Richardson and Ira G. Colby, both of Claremont, for defendant.
It is the contention of the defendant that it is not liable in this action because its agents "proceeded in accordance with chapter 77 of the Public Statutes in taking, removing, and selling the wood." Section 1 of the statute above referred to, now to be found in P. L. c. 92, provides that:
"If any timber, lumber, stone or other thing is upon a highway, incumbering it, the highway surveyor or agent may immediately remove the incumbrance, and hold the same in his possession until the costs of such removal are paid."
Sections 2 and 3 provide that, if the owner shall pay the cost of removal, the property shall be returned to him, but, if he does not, that it may be sold upon four days' notice, the proceeds applied in payment of the cost of removal, and the balance, if any, paid to the owner. The plaintiff contends that the foregoing provisions which make the cost of removal a charge against the incumbrance apply only "to obstructions that have been placed in a highway either through negligence or the willful conduct of some individual." The key to the meaning of the statute is to be found in its history.
In addition to the remedy by Independent action of the highway surveyor provided in the three sections above referred to, sections 4, 5, and 6 of the same chapter authorize an alternative method of procedure for the removal of incumbrances. These sections provide that:
"The surveyor or agent may, if he choose, give reasonable notice to the owner or person leaving any such incumbrance to remove the same; and upon his neglect or refusal, or if he is unknown, may make complaint thereof to a justice of the peace;" that the justice shall then order a hearing upon the complaint, and may thereafter issue his warrant to the surveyor to remove the incumbrance, "and to sell so much thereof as may be necessary to pay the legal costs, taxed by him, and three times the price of the labor of removing the same, to be estimated by the justice." "If the proceeds of the sale are insufficient to pay the sums specified in the warrant," the surveyor "may recover the balance unpaid by action on the case against the person leaving the same."
That the two forms of procedure thus outlined were designed by the Legislature to be merely alternative methods of dealing with the same situation is clearly indicated by the words giving the surveyor the right to "choose" which course he will pursue. Historically the second mode of procedure considerably antedates the one under which action was taken in the present case.
The substance of the sections last summarized, except the provision for an action over against the party causing the incumbrance, appears as early as 1786 in an act passed February 27 of that year, entitled "An act for mending and repairing the highways in this state." The preamble to the section in question, which indicates the occasion and the purpose of its enactment, reads as follows:
* * *"Laws of N. H. vol. 5, pp. 117, 119.
The provision for an action over against "the person or persons who shall so incumber said highways" appears in an amendment to the statute of 1786 which was passed June 20, 1806. Laws of N. H. vol. 7, p. 537. The substance of these provisions has been re-enacted in every revision of the statutes since that date, and now appears in P. L. c. 92, §§ 4-6. It seems plain from the language of the foregoing enactments that this form of remedy is available only in case the incumbrance is caused by the act of the person sought to be charged with the cost of removal, and this fact raises a strong presumption that the alternative form of remedy provided to meet the same sort of situation is similarly limited.
The provision authorizing the removal of incumbrances by the independent action of the highway surveyor first makes its appearance in the Revised Statutes of 1842, c. 59, § 1, where it reads as follows:
"The surveyor of highways may remove any timber, lumber, stones or other thing whatever placed or being in any highway or street to the incumbrance thereof."
No provision for the reimbursement of the town for the expense of such removal by the surveyor was made until 1864, when the following provision was enacted:
"If any person shall incumber any highway or street with any timber,...
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