Willis v. Wilkins

• Decision Date: 04 May 1943
• Docket Number: No. 3339.,3339.
• Citation: Willis v. Wilkins, 92 N.H. 400, 32 A.2d 321 (N.H. 1943)
• Parties: WILLIS v. WILKINS et al.
• Court: New Hampshire Supreme Court

32 A.2d 321

WILLIS

v.WILKINS et al.

No. 3339.

Supreme Court of New Hampshire.

May 4, 1943.

Transferred from Superior Court, Merrimack County; Young, Judge.

Certiorari proceeding by Marguerite S. Willis and others against George C. Wilkins and others to review certain regulations of the State Board of Health.On the report of a master who recommended that plaintiffs' petition be dismissed.

New trial.

Petition, for a writ of certiorari and for a decree declaring “null, void and of no effect” certain regulations of the State Board of Health prohibiting swimming and bathing in Pleasant Pond (a great pond situated in the towns of Deerfield and Northwood) and forbidding the erection and maintenance of any structure upon the ice of that pond.The petition concludes with a prayer for equitable relief.The plaintiffs are the owners of lands located on the shore of Pleasant Pond.The defendants are the members of the State Board of Health, the town of Pembroke, and the members of the Board of Health and board of water commissioners for that town.

On June 8, 1937, the two last-named defendants filed with the State Board of Health a “petition for water supply regulation” under the provisions of section 14 of chapter 141 of the Public Laws, R.L., c. 166, § 14, alleging that the water of Pleasant Pond, from which the town of Pembroke obtains its public water supply, was in danger of contamination, and requesting an amendment to the regulations then existing “so as to prohibit swimming or bathing in any part of said pond” and “the maintenance of any fishing houses on the ice thereof.”

Hearings on this petition were held by the State Board of Health on June 29, 1937, and on July 8, 1937.On July 13, 1937, the State Board adopted the regulations which the plaintiffs by the present proceedings seek to annul.Facts found by a master, who recommended that the plaintiffs' petition be dismissed.The plaintiffs excepted to the exclusion of certain evidence, to various findings of the master, to the refusal of the master to grant certain requests, and to the denial of the plaintiffs' motion for a decree annulling the above-mentioned regulations.

The questions of law raised by the plaintiffs' exceptions were transferred by Young, J., without a ruling.

Robert W. Upton and John H. Sanders, both of Concord, for plaintiffs.

Frank R. Kenison, Atty. Gen., and Ernest R. D'Amours, Asst. Atty. Gen., for defendants.

MARBLE, Justice.

The rights affected by the regulations in question comprise rights which the plaintiffs are privileged to enjoy primarily as members of the public together with certain incidental rights which they possess as owners of lands bordering Pleasant Pond.Hoban v. Bucklin, 88 N.H. 73, 87, 88, 184 A. 362, 186 A. 8.See also, Whitcher v. State, 87 N.H. 405, 409, 181 A. 549.Their lands may be less valuable because of the curtailment of these rights and privileges, yet the resulting loss is not one which entitles them to compensation.St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164, 26 A.2d 832, 838;State v. Quattropani, 99 Vt. 360, 363, 133 A. 352, and cases cited.

The fact that formal notice of the investigation conducted by the State Board of Health was not served upon the plaintiffs as riparian proprietors is unimportant.The statute contains no provision for notice other than a requirement for the posting or publication of the regulations made.P.L. c. 141, § 15, R.L. c. 166, § 15.Boards of health act summarily, and it is the prevailing rule that they“need not give notice of hearing to any person before they can exercise their jurisdiction for the public welfare, unless the statute under which they are authorized to act expressly so requires.”25 Am.Jur. 315, and cases cited.

Notice was given, however, in the present case both by posting and by publication, and some of the plaintiffs appeared at the hearings and participated therein.While the stenographic reports of the two hearings are fragmentary, there is no deficiency in the official record of the action finally taken.The Board finds as a fact “that there is considerable swimming in the waters of Pleasant Pond and that said waters are in danger of contamination because of swimming and bathing therein; that a continuance of swimming and bathing therein will endanger the public health and that it is necessary for the protection of said water supply against pollution to prohibit swimming and bathing in said pond.”On the basis of these facts, the Board adopted various rules and regulations including those to which the plaintiffs object.

The plaintiffs' contention that the Board erred in failing to grant certain requests for findings of fact and rulings of law is without merit.The plaintiffs were not entitled to a hearing as of right, and the Board could, if it saw fit, adopt a summary procedure.Furthermore, in the absence of a transcript of the testimony, no question relating to the sufficiency of the evidence to support the findings or regulations can properly be raised.Nelson v. Morse, 91 N.H. 177, 178, 16 A.2d 61.

The fact that certain members of the Board who participated in the final deliberations did not hear all the testimony introduced at both hearings is immaterial.The Board “had a right to act, upon its own inspection and knowledge,” it “was not obliged to hear any party,” and “could obtain its information from any source and in any way.”Copcutt v. Board of Health, 140 N.Y. 1, 10, 35 N.E. 320, 323, 23 L.R.A. 481, 37 Am.St.Rep. 522.

In a proceeding for certiorari the scope of the inquiry is whether the...