Vaughn v. Durham., 3451.
| Decision Date | 07 December 1943 |
| Docket Number | No. 3451.,3451. |
| Parties | VAUGHN et al. v. NEW DURHAM. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Strafford County; Lorimer, Judge.
Petition by Donald R. Vaughn and another against New Durham for assessment of damages alleged to have been caused by alteration of the grade of a highway and by changes in drainage ditches and culverts on such highway. At the conclusion of plaintiffs' evidence, defendant moved to dismiss the petition. The master's recommendation that the motion be granted was rejected by trial court, which denied the motion, and the action was transferred on defendant's exception
Petition dismissed.
Petition, under P.L. c. 80, §§ 32, 33, R.L. c. 96, §§ 32, 33, for the assessment of damages alleged to have been caused by the alteration of the grade of a certain highway and “by changes made in drainage, ditches and culverts in said highway.” The material facts, reported by a master, are as follows:
The road in question leads from New Durham Ridge to Farmington and is referred to as the Ridge Road. The changes in the road of which the plaintiffs complain were made by New Durham and did not extend beyond the town line. The plaintiff's farm is located on this road at the foot of the hill, and all but a small section of pasture land is in Farmington. The notice to the selectmen of New Durham to assess the plaintiff's damages, as provided in section 32, was duly given.
The Ridge Road in time of rains, freshets, and thaws carries a large volume of water from New Durham Ridge down to the Farmington line. In 1938 side drains were dug out, and in several places water was turned off the road into adjoining pasture land, where it drained into a small natural brook which flowed across the farm of the plaintiffs. The property which the plaintiffs claim has been damaged does not adjoin the section of the Ridge Road where the alterations were made but lies in Farmington. No damage is claimed for the small section of the plaintiff's farm adjoining the Ridge Road in New Durham.
At the conclusion of the plaintiffs' evidence the defendant moved to dismiss the petition. The master's recommendation that the motion be granted was rejected by the court, who denied the motion subject to the defendant's exception. All questions of law raised by this exception were transferred by Lorimer, J.
Cooper, Hall & Grimes, of Rochester, for plaintiffs.
Errol S. Hall, of Farmington, for defendant.
Section 32 of chapter 80 of the Public Laws provides that: “If in repairing a highway by the authority of the town the grade is raised or lowered, or a ditch made at the side thereof, whereby damage is occasioned to any estate adjoining, the selectmen, on application in writing of the owner, shall, on notice to and hearing of the applicant, view the premises and assess the damages, and, within thirty days after the application, file the same, with their doings thereon, in the office of the town clerk for record.” Section 33 provides that “If the owner is aggrieved by the assessment, or if the selectmen neglect to file...
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