Nashua & Rochester Railroad v. Lee

• Decision Date: 12 August 1875
• Citation: 55 N.H. 568
• Parties: Nashua & Rochester Railroad v. Lee.
• Court: New Hampshire Supreme Court

55 N.H. 568

Nashua & Rochester Railroad v. Lee.

Supreme Court of New Hampshire

August 12, 1875

Railroad Crossings---Practice.

A report of county commissioners had been made and field in the clerk's office in the circuit court, to the effect that a bridge was necessary for the public safety and convenience over a certain railroad crossing. Afterwards, on petition of a land-owner, a report of the same commissioners was made and filed in the same court, laying out a substitute for the highway at that place, and discontinuing the old highway. Both petitions and reports were pending in said court in the same term. Held, that a motion to accept the second report and recommit the first for inquiry as to change of circumstances, ought to be granted

In this case, two reports of the board of county commissioners were pending at the February term, 1875, of the circuit court. One was a petition by the plaintiffs against an order of the town of Lee, requiring them to build a bridge over their railroad at a crossing of the highway, and was to the effect that the bridge was necessary for the public safety and accommodation. The other was on a petition in favor of a landholder, and was to the effect that the highway ought to be discontinued, and ordered a substitute to be made for it so that the proposed bridge would no longer be necessary.

The hearing on the first petition was had before the filing of the other. Both reports were returned to the circuit court at the September term, 1874.

The plaintiffs moved that judgment be rendered on the second report, and that the first report be recommitted to the board, to inquire

and report, amongst other things, whether any change of circumstances had taken place which would render the bridge unnecessary.

The first report was signed by all the commissioners, April 21 1874, and filed in the clerk's office July 24, 1874. The second petition was heard July 21, 1874, and field September 1, 1874.

The questions arising on the foregoing case were transferred, by order of STANLEY, J., to the superior court of judicature for determination.

Stevens and Sawyer, for the plaintiffs. Hobbs, for the defendants

At the time of making, the road where the bridge was needed was one the town was legally bound to keep safe. There were no proceedings pending or proposed at that time to discontinue that part of the road. The question then was, What was needed as the facts then existed? The commissioners had no right to leave the place unsafe, on the ground that, if the highway in the future should be discontinued, there would be no occasion for a bridge: they were called upon to consider evidence as to an existing highway, and nothing else.

No exception can be taken to their acceptance or rejection of evidence. Their report was made and filed before any petition was made by Plummer, and the town of Lee is entitled to judgment on the report and costs. If by any proceedings on the Plummer petition the highway is discontinued, that may be a good reason why the bridge should not be built, and an answer to any proceedings against the railroad for not building the bridge; but no act of the commissioners, after their report was signed and filed, can be construed as changing their report.

The case of Wentworth v. Farmington is based on the ground that commissioners may, at any time before court, change their finding; but it applies only to those cases where they retain the report in their own control, and not to cases where they have put their report upon the files of the court, for then they cease to have any power over the...