Leary v. City of Manchester

• Citation: 21 A.2d 156
• Parties: LEARY v. CITY OF MANCHESTER.
• Decision Date: 24 June 1941
• Court: New Hampshire Supreme Court

21 A.2d 156

LEARY

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

June 24, 1941.

Transferred from Superior Court, Hillsborough County; Lorimer and Johnston, Judges.

Action by Daniel B. Leary against the City of Manchester for declaratory judgment determining defendant's right to acquire title to property by condemnation, transferred without ruling by Lorimer and Johnston, JJ.

Judgment for defendant.

Bill, amended by petition for a declaratory judgment to determine the issue in controversy between the parties whether the defendant may acquire by condemnation full title to property in which it now has an easement. The city's liability under the easement was the subject of litigation in the case between the same parties reported in 90 N.H. 256, 6 A.2d 760.

Transferred without ruling by Lorimer and Johnston, JJ.

Thorp & Branch, of Manchester (Frederick W. Branch, of Manchester, orally), for plaintiff.

William H. Craig, City Sol., and J. Francis Roche, both of Manchester (Mr. Roche, orally), for defendant.

ALLEN, Chief Justice.

As an outcome of the prior litigation the city seeks to obtain by eminent domain full title to the premises in which it now has an easement, on the ground that the expense of maintenance which the terms of the easement impose upon it as a continuing obligation will be substantially greater than the value of the plaintiff's ownership. The novel situation is presented in which full title to property results in real economy in comparison with only an easement therein. The easement is of a right to build a ditch across the plaintiff's land, and in part consideration for it the city agreed to maintain the ditch in a manner causing no unnecessary damage to the premises over which it was to run. The alleged necessity for the city to become the owner in full title of the premises injuriously affected by an improper maintenance of the ditch is not to protect the city's water supply but to do away with the expense of avoiding a private nuisance.

The right of eminent domain conferred upon the city's board of water commissioners by special act, Laws 1891, c. 26, § 2 is a limited one. It is granted only "for the preservation of the water" of Lake Massabesic. The claim of right now asserted is not to protect the city's water supply. Ownership of the easement fully accomplishes the protection, so far as the plaintiff's land is needed therefor. The fact that protection can be less expensively secured by full ownership of the land does not constitute a threat against the purity of the water. Since the grant of power to condemn includes only its express terms and necessary implications (Thompson v. Manchester Traction, etc., Company, 78 N. H. 433, 434, 101 A. 212; Maine-New Hampshire &c. Authority v. Ham, N.H., 16 A.2d 362), the plaintiff's title cannot be acquired under the act above cited.

A general statute, P.L. c. 42, § 71, authorizes towns to condemn "any land required for public use", if, as is here assumed, it cannot be obtained by contract. In cities the city councils are vested with the authority. P.L. c. 54, § 1.

The statute widens the scope of the predecessor law, Laws 1872, c. 38; Gen. Laws, c. 37, § 7, authorizing the taking of land by municipalities for a purpose of fire protection. The change was made in 1891, P.S., c. 40, § 6, and by it land which the municipality might acquire by purchase "for the public uses of the inhabitants", P. S, c. 40, § 3; P.L. c. 42, § 3, could be acquired by condemnation if no agreement to purchase could be made. The test of public use under either method is the same. Any authorized public undertaking is one for public use, and no purpose in the legislation is found that only in the case of strictly governmental functions may the authority either to purchase or to condemn be exercised or exerted. Maintenance of a public library by a municipality is an obligation voluntarily assumed, and land for it may be acquired by condemnation as well as by purchase. Attorney-General v. Nashua, 67 N.H. 478, 32 A. 852. It would be thought anomalous if title to land for a public park or common might be gained only by purchase.

The special grant of the power in connection with municipal water works, P.L. c. 43, § 2, and lighting systems, P. L, c 44, §§ 8, 15, or in taking land for public playgrounds, P.L. c. 42, § 32, manifests no limitation of the public use for which the general power may be employed. Without the special grant the power would exist under the general grant. Authority to conduct the business of waterworks and lighting systems implies authority to acquire property needed therefor, and the general right to condemn is as applicable as the general right to purchase. These subjects are dealt with comprehensively by the legislation providing for them, and the inclusion in the legislation of special power to acquire real estate does not cut down the scope of the general power. The legislation was enacted subsequently to the Public Statutes of 1891 and to the case of Attorney-General v. Nashua, supra, and it does not serve to show the legislative thought and intent of that year, or that the reenactment of the general and special powers in 1926 by Public Laws calls for a change of construction.

The city councils may not exercise authority specially granted to special administrative boards, but authority withheld from such boards remains in the councils. They may not interfere with the authority and functions of the boards, but subject thereto they may act for the city's general welfare within legislative permission. Any economy which may be effected in any city department is more than of departmental interest. It benefits the city as a whole, and if it may be brought about by action of the city councils when the administrative board is powerless to accomplish it and when the action does not intrude upon the board's...