Strickford v. Boston & M. R. R.

• Decision Date: 01 November 1904
• Citation: Strickford v. Boston & M. R. R., 59 A. 367, 73 N.H. 81 (N.H. 1904)
• Parties: STRICKFORD v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

59 A. 367

73 N.H. 81

STRICKFORD

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

Nov. 1, 1904.

Transferred from Superior Court; Peaslee, Judge.

Action on the case by Emmie Strickford against the Boston & Maine Railroad. A demurrer was interposed to the declaration, and the questions of law were transferred from the superior court. Demurrer sustained.

The declaration alleges, in substance, that at the time of the acts complained of the plaintiff was, and now is, the owner of a certain lot of land in the town of Hooksett, bounded on its easterly side by a public highway; that a three-story building, the east line of which is upon the west line of the highway, occupies nearly the entire frontage of the lot, with entrances upon the highway, which must so remain, as there is no room at either end of the lot for a passway by the building; that the ground floor of the building is fitted up for commercial purposes, and the upper stories for tenements, and were so used and occupied down to the time of the acts complained of; that as an abutter upon the highway the plaintiff owns, and down to the time of the construction of the defendants' railway used and enjoyed, a private right of access to his lot and building from the highway; that in June, 1902, the defendants, in disregard of the plaintiff's right, constructed the tracks of their Manchester & Concord Street Railway in the highway, parallel to and within 7 1/2 feet of his building, and have since so maintained and operated the same; and that, as a result of their conduct, his right of access has been seized, and almost entirely destroyed, and he has been unable to rent or use his building for the purposes for which it is designed. It was agreed that the following facts might be considered as alleged in the declaration: April 6, 1901, the defendants petitioned the selectmen of Hooksett for a location of their railway upon the highway. They did not request the selectmen to assess the damages that might be occasioned the plaintiff's property thereby. Notice of a hearing upon the petition was duly given, and the plaintiff did not appear and object, although he knew of it. The selectmen granted the location for the railway on May 17, 1901, but did not consider whether the plaintiff's property was damaged or not. The defendants constructed the railway according to the layout granted, but have never caused the plaintiff's damages to be assessed, paid, or tendered. The plaintiff knew of the construction of the railway as it progressed, and made no objection.

Almon F. Burbank, for plaintiff.

John M. Mitchell, for defendant.

BINGHAM, J. The defendants contend in support of their demurrer that the railway is lawfully located within the limits of the highway, and that, although the plaintiff owns the fee to the center of the highway opposite his lot, the construction of the railway upon it was not the imposition of an additional burden—the taking of a new easement —and that the plaintiff is not entitled to damages. The plaintiff, on the other hand, contends that the railway is not lawfully in the highway; that, although its location was properly granted, the defendants had no right under the law to appropriate and use the highway for railway purposes without first causing his damages as an abutter to be assessed and paid or tendered to him; and that because of their failure in this regard he is entitled in this action, or by some other appropriate procedure, to have his damages ascertained and paid. In 1895 the Legislature enacted a general street railway law (Laws 1895, p. 367, c. 27), in which it provided (section 1) that "street railway companies shall have the powers and privileges, and be subject to the duties, liabilities, restrictions, and provisions, contained in this chapter." The defendants' street railway was constructed under the provisions of this act. It is therefore necessary to ascertain what steps the law required the defendants to take to lawfully occupy the highway with their railway. In section 5 of the railway law it is provided that: "All parts of street railways occupying any portion of a public highway or street shall be located thereon by the mayor and aldermen of cities or selectmen of towns in which said portions of said highways or streets may be. The board of mayor and aldermen of a city or the selectmen of a town, * * * upon petition of the directors of such railway corporation for a location of its tracks on or over any public highway, * * * shall give notice by publication to all parties interested of the time and place at which they will consider such petition for location in the public highways of said town or city; and after a public hearing of all persons interested they may make an order granting the same, or any portion thereof, under such restrictions and upon such conditions as they may deem the interests of the public require; and the location thus granted shall be deemed to be...