State v. 4.7 Acres Of Land

• Decision Date: 07 December 1948
• Docket Number: No. 3774.,3774.
• Citation: 62 A.2d 732
• Parties: STATE v. 4.7 ACRES OF LAND et al.
• Court: New Hampshire Supreme Court

62 A.2d 732

STATE

v.4.7 ACRES OF LAND et al.

No. 3774.

Supreme Court of New Hampshire.

Dec. 7, 1948.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Carroll County; Goodnow, Judge.

Eminent domain proceeding by the State against 4.7 acres of land and another. Decree for the State. On defendant's exceptions.

Exceptions overruled.

Petition for the acquisition of 4.7 acres of land in Moultonborough, on the northerly end of Long Island, in Lake Winnepesaukee. The State seeks to exercise its powers of eminent domain pursuant to Laws 1939, c. 191, as amended by Laws 1941, c. 72, and Laws 1943, c. 165. A decree of title entered February 8, 1943 and a subsequent report of commissioners assessing damages were set aside on motion of the defendants. On May 31, 1945, the defendants Haller and Goodhue moved to dismiss the petition upon the ground that the special act of 1939, as amended by that of 1941, and the provisions of the general statutes referred to therein, now R.L. c. 27, §§ 23-33, are unconstitutional. The motion was denied subject to the defendants' exceptions.

On November 19, 1947, upon hearing on questions of title, the same defendants made an offer of proof which was denied subject to their exceptions. Public Service Company of New Hampshire has title by deed to a strip of shore adjoining premises owned by the defendants. In this strip the defendants have certain rights of user, conditioned upon payment of taxes upon the strip, and subject to the owner's right to drain and flow the same. The offer was of proof calculated to show that Public Service Company is unlikely to exercise its right of flowage; that the owners of lake shore properties have used and developed them in reliance upon the present high water mark; and that the existence or non-existence of flowage rights plays no part in the determination of selling prices of such properties. In denying the motion, the Court ruled that the proof offered was immaterial upon the issue of title, but ‘goes to the question of damages and may be raised at a later point in these proceedings.’ The order further provided that ‘before the matter of damages is referred * * * the Court will consider the offer of proof * * *.’

On November 24, 1947, the same defendants filed a further motion to dismiss because the land described in the petition and shown by the plan ‘includes more land than was intended’ by the special act, and is ‘greatly in excess of the amount of land referred to in the Act.’ This motion was likewise denied subject to the defendants' exceptions.

No exceptions to the decree of title entered December 30, 1947 are presented. The defendants' bill incorporating the exceptions to the denial of their several motions was approved and allowed by Goodnow, C. J. Further facts appear in the opinion.

Ernest R. D'Amours, Atty. Gen., and Gordon M. Tiffany, Asst. Atty. Gen., for the State.

Nighswander & Lord and Hugh H. Bownes, all of Laconia, for defendants Haller and Goodhue.

DUNCAN, Justice.

The defendants' motion to dismiss upon the ground of the unconstitutionality of the statutes involved assigns as reasons that no provision is made for hearing and the presentation of evidence upon the question of ‘feasibility’ of the proposed taking, and in the case of the general statute, upon the question of public necessity; and that the special act as amended provides for the transfer of title to the town of Moultonborough after taking. As the motion is interpreted, no claim is made that the taking is not for a public purpose (Cf. Shoemaker v. United States, 147 U.S. 282, 283, 297, 13 S.Ct. 361, 37 L.Ed. 170), or that no adequate provision is made for the payment of compensation. Cf. Goodrich Falls Electric Co. v. Howard, 86 N.H. 512, 171 A. 761.

It is well settled under the Federal Constitution that while determination of the question of public purpose is a judicial one, that of the necessity and expediency of the taking is wholly legislative. The same principle has long since been held applicable under our own Constitution. Concord Railroad v. Greely, 17 N.H. 47, 64; Petition of the Mount Washington Road Co., 35 N.H. 134. In Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 63, 64 L.Ed. 135 it was held that upon legislative questions a ‘hearing * * * is not essential to due process in the sense of the Fourteenth Amendment.’ See also, Joslin v. City of Providence, 262 U.S. 668, 678, 43 S.Ct. 684, 67 L.Ed. 1167; Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186; City of Oakland v. United States, 9 Cir., 124 F.2d 959, certiorari denied, 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753. Although professing to recognize the force of the principles enunciated in the Bragg and Rindge cases, the defendants assert that ‘due process of law requires that there be some sort of notice and hearing before the State seizes and takes title to the private property of an individual.’ As authority for this position they have cited Grand Trunk Railroad Co. v. Berlin, 68 N.H. 168, 36 A. 554 and Hodge v. City of Manchester, 79 N.H. 437, 111 A. 385. As to these cases, what was said by the Court in Governor and Council v. Morey, 78 N.H. 125, 129, 97 A. 375, 377, involving proceedings similar to those before us, is here pertinent: ‘Decisions touching the rights of landowners in highway appeals * * * have no application here. Those cases merely construe the peculiar provisions of the statute governing laying out highways. * * * It has no general application.’

In State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796, complaint was made of lack of opportunity for hearing before the passage of an ordinance establishing a street. It was there said: ‘The taking is a legislative and not a judicial function, and an opportunity to be heard in advance need not be given.’ 264 U.S. page 483, 44 S.Ct. page 371. See accord, Sears v. City of Akron, 246 U.S. 242, 251, 38 S.Ct. 245, 62 L.Ed. 688. There is no reason for a different rule under the New Hampshire Constitution. Concord Railroad v. Greely, Petition of the Mount Washington Road Co., supra.

Furthermore the argument ignores the fact that the pending proceedings were instituted by authority conferred by special act to acquire ‘the northerly end of said Long Island.’ Laws 1939, supra. This was notice to owners of the land that they might expect it to be affected by action of the governor and council. There is no indication that the defendants would have been denied an opportunity for a hearing on the ‘question of feasibility,’ so far as it was determined by executive action. With respect to legislative action, it is not suggested that the customary notice of pending legislation was omitted when the special act was passed. As the brief for the State points out, to require special notice to interested individuals would be to ‘deny the basic principle of representative government.’ No foundation for the defendants' claim of a right to notice is to be found in ...