Knox v. Epsom

• Decision Date: 13 August 1875
• Parties: Knox v. Epsom.
• Court: New Hampshire Supreme Court

56 N.H. 14

Knox v. Epsom.

Supreme Court of New Hampshire

August 13, 1875

Laying out highways---Notice.

Persons interested in the question of the laying out of a new highway, but not entitled by statute to notice of the petition, cannot object to the sufficiency of the notice to a town entitled by law to notice

From MERRIMACK Circuit Court

PETITION of Henry Knox and eighteen others for a new highway in the town of Epsom. The petition was filed March 25, 1875, and an order of notice issued by the clerk of the court and annexed to said petition, requiring service thereof by "causing a certified copy of said petition and of this order thereon to be given to or left at the last and usual place of abode of the town-clerk and one of the selectmen of said town, each twenty-eight days at least before said April term of said court." It was addressed to the circuit court, and entered at the present term, which commenced on the first Tuesday of the month, as fixed by law. On the back of the petition, under date of March 26, 1875, is the following writing:

"The town of Epsom hereby acknowledges due and legal service of the within petition and order of notice thereon on said town and waives all objection and exception to the want of formal legal service thereof upon said town, a copy thereof duly certified having been given to the selectmen, which is accepted as and for legal service on the town-clerk and one of the selectmen, made more than twenty-eight days before the term of court to which the same is returnable.

[Signed] The town of Epsom, by

SAMUEL MARTIN ) Selectmen

ANDREW S. EVANS ) of

DAVID M. KNOWLES ) Epsom. "

Upon the clerk's docket appears the entry of the name of counsel for the petitioners and "selectmen for the town of Epsom," made by the clerk at the suggestion of counsel for the petitioners, he understanding that such entry would be agreeable to the selectmen.

Upon the call of the docket, and upon motion of the petitioners' counsel (no one opposing said motion), it was ordered that the petition be referred to the county commissioners. Subsequently, a week or two later, Messrs Tappan & Albin appeared, and by leave of court entered their names upon the docket, as appearing specially for certain remonstrants, and for the "Cemetery Association." They were permitted to file in court the remonstrance of J B. Tennant and one hundred and forty-eight others, "inhabitants and legal voters of the town of Epsom," representing that "on the ninth of March, 1875, at a legal meeting of the legal voters in said Epsom, an article in the warrant warning said meeting reads as follows, to wit,---

'Art 9th. To see what action...