Upper Coos R. Co. v. Parsons

• Decision Date: 24 December 1889
• Citation: 19 A. 10,66 N.H. 181
• Court: New Hampshire Supreme Court
• Parties: UPPER COOS R. Co. v. PARSONS.

19 A. 10

66 N.H. 181

UPPER COOS R. Co.

v. PARSONS.

Supreme Court of New Hampshire. Coos.

Dec. 24, 1889.

Exceptions from Coos county.

Plaintiff presented its petition to the railroad commissioners for an appraisal of defendant's land taken for its railroad, and appealed from the report of the commissioners. Gen. Laws N. H. c. 160, § 17, provides that "such report shall be final, unless either party aggrieved shall appeal therefrom within 30 days after notice thereof; upon which appeal the same proceedings shall be had as on appeal from an award of damages by the county commissioners." Under chapter 69, § 13, where an appeal is taken from an award of damages by the county commissioners, "the court shall assess his damages by a jury." In court the plaintiff abandoned its appeal. The defendant demanded a jury trial, and excepted to the refusal of the court to grant it.

Drew & Jordan, Aldrich & Remick, and J. H. Dudley, for plaintiff. Ossian Hay, for defendant.

CLARK, J. An appraisal of land damages by railroad commissioners is conclusive, unless appealed from, and either party aggrieved may appeal. If no appeal is claimed within 30 days after notice, the report of the commissioners is final. Gen. Laws, c. 160, § 17. If either party desire an assessment of damages by a jury, the statute provides the mode of obtaining it, by an appeal within 30 flays; and a party failing to appeal within the time specified, thereby waives his right to have the damages assessed by a jury. By neglecting to appeal, the appellee waived the right to object to the damages awarded by the commissioners. The appellant, objecting to the award and claiming an appeal, was not legally bound to insist on his objection. The right to abandon his appeal is analogous to the right of a party to become nonsuited, which, as a general rule, with some exceptions not necessary to be considered here, (Pollard v. Moore, 51 N. H. 188; Fulford v. Converse, 54 N. H. 543,) may be exercised at any time before the case is opened to the jury, (Judge of Probate v. Abbot, 13 N. H. 21; Caverly v. Jones, 23 N. H. 573; Wright v. Bartlett, 45 N. H. 289; Farr v. Cate, 58 N. H. 367; Benton v. Bellows, 61 N. H. 107.) The appellee, by neglecting to appeal, and the appellant, by failure to prosecute his appeal, admitted the damages as found by the commissioners, and, in effect, assented to judgment on the award. Knox v. Lermond, 3 Greenl. 378, 379. The award of the commissioners was merely suspended by the appeal. The effect of a simple appeal from one common-law court to another, under our statute, is not to vacate the judgment appealed...