Landry v. City of Manchester

• Decision Date: 07 October 1958
• Citation: 144 A.2d 909,101 N.H. 412
• Parties: Marcel LANDRY et al. v. CITY OF MANCHESTER. Joseph STEFENS et al. v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 909

144 A.2d 909

101 N.H. 412

Marcel LANDRY et al. v. CITY OF MANCHESTER.

Joseph STEFENS et al. v. CITY OF MANCHESTER.

Supreme Court of New Hampshire.

Argued Sept. 3, 1958.

Decided Oct. 7, 1958.

Danais & Danais and Martin F. Loughlin, Manchester, for plaintiffs.

J. Francis Roche, Manchester, for defendant.

BLANDIN, Justice.

The question before us is whether the plaintiffs are entitled to the damage done by all the grading, or, as the defendant claims, only to that caused by the change from the original curb grade, of which they had notice, to the new grade. The precise question does not appear to have been decided in this state, and decisions from other jurisdictions depending on different laws and policies are not persuasive.

It is not disputed that any liability of the municipality is wholly statutory. Waldron v. Berry, 51 N.H. 136. It had its origin in Laws 1848, c. 725 and remains unchanged in substance up to the present time. Keating v. Town of Gilsum, 100 N.H. 84, 86, 119 A.2d 344; Perrotto v. City of Claremont, 101 N.H. 267, 269, 140 A.2d 576. The present statute (RSA 245:20) reads as follows: 'If in repairing a highway by the authority of the town the grade is raised or lowered * * * whereby damage is occasional to any estate adjoining, the selectmen, on application in writing of the owner, shall * * * assess the damages * * *.' The plaintiffs claim the interpretation of the statute was settled in their favor by the case of Hinckley v. City of Franklin, 69 N.H. 614, 45 A. 643. There the Court held that a landowner who built upon a lot abutting an 'ancient highway' was entitled to damages for the subsequent construction of a sidewalk along the highway in front of her home. However, in that case it does not appear that any grade had ever been legally established or that the plaintiff had any notice of any contemplated change prior to acquiring the property. In these circumstances, the Court properly reasoned that she could rely on the natural condition of the area existing between the road and her property when she bought it. We believe this case is clearly distinguishable from the situation before us where plaintiffs had notice of the duly established grade of the highways abutting their property before they purchased. Under our decisions, liability to the plaintiffs would only arise 'by a change in grade in the highway from what was established in the original lay-out.' (Emphasis ours.) Locke v. City of Laconia, 78 N.H. 79, 81, 97 A. 567, 568. The City of Manchester concedes that it is liable to this extent.

However, the plaintiffs argue that since sewers, pavements, and hydrants had been put in, and also in view of the delay from 1951 to 1955 before any actual change on the ground was made, they had a right to rely on the maintenance of the status quo and should be compensated fully for damages caused by the actual establishment of the grade. There is force in their...