Northern Railroad v. Enfield

• Decision Date: 11 August 1876
• Citation: 57 N.H. 508
• Parties: Northern Railroad v. Enfield.
• Court: New Hampshire Supreme Court

57 N.H. 508

Northern Railroad v. Enfield.

Supreme Court of New Hampshire

August 11, 1876

Highways---Laying out by selectmen.

By Gen Stats., ch. 233, secs. 7, 8, when all the selectmen are disqualified to act, they may appoint a board to hear and determine a petition for a new highway; but if there remain one of the board who is qualified, he must appoint those who are to take the place of the persons who are disqualified

FROM GRAFTON CIRCUIT COURT.

APPEAL by the plaintiffs, in the ordinary form, from the decision of the selectmen of Enfield in laying out a highway.

In 1874 a petition was presented to the selectmen for a highway between the same termini as those stated in this petition. After notice and a hearing they refused to lay it out, and a petition was then presented to this court, and it was referred to the county commissioners, who, after notice and a hearing, decided against the prayer of the petition. Their report was duly returned into court at the March term, 1875 and judgment was rendered thereon.

Subsequently another petition was presented to the selectmen, being the one now in question; and, after notice and a hearing, they decided to lay out the same, and accordingly did so, and made a record thereof. From this decision the plaintiffs appeal within the time prescribed by law. The appellants now move to reverse the decision of the selectmen, and assign the following reasons:

1. Because the same subject-matter was heard, considered, and decided by a qualified board of selectmen of Enfield in 1874.

2. Because the same subject-matter was heard, considered, and decided by the county commissioners, and judgment entered (see their report, March term, 1875); and there has been no change of circumstances since the decision of the selectmen of 1874, and the decision of the court, March term, 1875.

3. Because two of the selectmen of Enfield for the year 1875 were disqualified to act, by reason of interest or otherwise, and they appointed in their places two others, viz., Ansel P. Howe and Smith Marston; and, by reason of relationship, the board as thus constituted decided that said Howe was disqualified to act, and he therefore did not act in the matter on the board as then constituted; and the two remaining members of the board, against the objection of the plaintiffs, proceeded to hear, consider, and decide the matter.

4. Because, the matter having been heard and decided in 1874, the board had no power or authority to act in 1875.

If it would be competent, the appellants offer to show that the town, at the annual town-meeting in 1875, voted to lay out said highway, there being a proper article in the warrant for that purpose.

The plaintiffs offered to show that there had been no change of circumstances affecting the necessity for said highway since the hearing before the selectmen in 1874 and the hearing before the commissioners in 1875, unless such a change is to be presumed from the vote of the town in March, 1875, and the subsequent action of the selectmen in laying out the same in 1875; but the court excluded it, and the plaintiffs excepted.

The plaintiffs introduced evidence tending to show that two of the selectmen for 1875 were disqualified; that they appointed in their places two others; that after their appointment, and after they had taken the oath, it was ascertained that one of them was related to one of the petitioners---the grandfather of one of the selectmen and the grandmother of one of the petitioners were brother and sister---and the board decided that he could not act, and thereupon he withdrew and did not act; and the two remaining members of the board, as thus

constituted, proceeded to hear and determine the case. The court pro forma denied the motion of the plaintiff, and they excepted.

The defendants then moved that this appeal be referred to a new board of commissioners, to be appointed by the court, it appearing that two members of the present board had heard the petition for the road in question prior to the March term 1875, they then being members of the board, and the remaining member being a...