Wilkins v. City of Manchester

• Decision Date: 04 June 1907
• Citation: 74 N.H. 275,67 A. 560
• Parties: WILKINS v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

67 A. 560

74 N.H. 275

WILKINS

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

June 4, 1907.

Transferred from Superior Court.

Proceedings for the condemnation of land for a highway by the city of Manchester against Joseph Wilkins. From an assessment of damages for the land taken, Wilkins appealed to the superior court, by which the case was transferred to the Supreme Court on an agreed statement of facts. Case discharged.

Before 1895 the owner of a tract of land in Manchester plotted it and recorded the plan, which showed the lots into which it had been divided and a proposed street called "Brooklyn Avenue." Prior to November 11, 1895, he sold all the lots but one, bounding them by that avenue, and on that day sold the last lot, together with the location of the avenue, to the plaintiff's ancestor in title. After the plaintiff bought the property, the mayor and aldermen laid out Brooklyn avenue as a highway and awarded him one cent as damages. He appealed, and the commissioners gave him the same damages. When this report was filed, he asked to have his damages assessed by a jury. "Upon the foregoing facts, if the plaintiff cannot maintain his action, his appeal is to be dismissed; otherwise, to stand in order for trial."

Henry N. Hurd, for plaintiff. George A. Wagner, for defendant.

YOUNG, J. If the question intended to be transferred is whether the plaintiff is entitled to a jury trial, the answer is, "Yes;" for that right is given him by statute. Pub. St. 1901, c. 68, § 10; Laws 1897, p. 15, c. 13. But, if the question is the measure of his damages, the answer is that he can recover no more than the commissioners awarded him, if the agreed case contains all the evidence bearing on that question, for this case cannot be distinguished from Walker v. Manchester, 58 N. H. 438.

Case discharged. All concurred.