Twombly v. Madbury, 27 N.H. 433

Woods, J. By the provisions of

chapter 51

section 8 of the Revised Statutes, an owner of land through which a road laid out by the road commissioners passes, being dissatisfied with the amount of damages awarded him by the commissioners, upon laying out the road, may appeal to the court of common pleas next to be holden in the county, and not afterwards; and thereupon the court shall assess his damages by a jury.

These provisions were substituted for those of the statutes of 1791 and 1829, which gave redress in such cases of dissatisfaction, in the form of a “ petition ” to the court of general sessions, or, after the change in the system of the courts, to the court of common pleas. Laws of N. H. 386, 574. The form of appeal adopted in the present case, which was a petition addressed to the court of common pleas, setting forth the facts, is one which has obtained to a very considerable extent in the State, if it be not in fact the one in most general use, since the passage of the Revised Statutes.

The petition or writing claims the appeal given by the statute, and asks that the matter of the damages may be tried by a jury in the court of common pleas. It was entered upon the docket at the August term, 1852, in the civil list, and an order of notice, then issued, was duly served upon the town. At the term ensuing, counsel appeared for the town, and the cause was continued; and at the August term, 1853, an issue was joined. The appeal was claimed in no other way than by entering and filing the petition, and for that reason, the town moved that the proceedings be dismissed.

The motion was denied, and the trial resulted in a verdict for an increased amount of damages. At that term, but before the case was opened to the jury, the defendant objected to the form of the appeal adopted, and insisted that instead of a petition separately entered in the name of the appellant, an entry or memorandum should have been made upon the docket, in connection with the entry of the original petition for the laying out of the highway, as being part of the proceedings under it. If that course had been a sufficient appeal, we think the one which was pursued was certainly so.

And without saying that the mode pointed out by the defendants may not be sufficient, we think that if it be so, this is. No reason occurs to us opposed to this view. Besides, as we have seen, it is sanctioned by usage. The statute points out no mode of instituting the appeal; but it contains no words indicating that the mode previously in use, in the form of a petition, may not be as fit and proper as any.

And it makes no material changes in the process and forms of laying out the road, which ought to dispense with that notice to the appellee, the town, which may be effectually given by an order of notice upon a petition. It makes no changes in the proceedings that should afford ground to believe that notice to the town, as formal and perfect, at least, as the notice ordinarily given upon petitions, was intended to be dispensed with. And in what way can the town be better advertised of the appeal?

What other safe way can be pointed out by which the town can receive notice at all, but by sending to court to inquire if the memorandum has been entered upqn the docket, in a case in which it may have ceased to litigate ? Such a course of proceeding could have no claim of advantage over the one adopted in the present case, excepting that of novelty.

If the land owner has the period intervening between the award of damages and the term of court having cognizance of the commissioners’ report, to make his election on the subject of the appeal, the town seems to be provided with no other means of having the appeal notified to its agents. In short, without being prepared to say that the mode of taking the appeal which the defendants point out is a faulty or insufficient one, we are inclined to give a preference to the one which was adopted in this case. The motion in this case is therefore denied, and there must be, Judgment on the verdict.