Petition of the Town of Hopkinton, 27 N.H. 133

Woods, J. Upon a petition to the court of common pleas, for their assent to the vote of a town to discontinue a road, there is but one course to be taken. The necessity of the case, the provisions of the statute and the uniform practice of the cpurts for many years, require that the merits of the case be referred to the road commissioners for examination.

In order that such reference may not take the form and effect of a mere appeal from one board of commissioners to another, in cases in which the highway in question has not, in fact, been opened for public travel, the court have adopted a rule, that in such cases the commissioners be required to examine and report whether any change of circumstances, in any matter affecting the expediency or necessity of the highway, has occurred since the same was laid out, so that the same is no longer necessary, and should be discontinued by reason of such change of circumstances; and if so, to report the nature of the change, with the particular circumstances, and how they affect the case.

Hopkinton v. Smith, 15 N. H. Rep. 152; Petition of Nashua, 12 N. H. Rep. 425. The commissioners, having assumed to do so in the present instance, exceptions have been taken to their report, on the ground that they have not, in some particulars, conformed to those instructions. The changes which may occur to affect the expediency or necessity of constructing a particular road or bridge, in a country undergoing a constant change, are various and incalculable.

What may be sufficient to justify the abandonment of a projected improvement of that sort, it would be wholly impossible to predetermine, or even to indicate the nature or subject-matter of such changes.

All that can be done is to ascertain from the report that substantial changes have intervened, and that they are such, that they may reasonably be supposed to influence the course of public travel, or the expenses of constructing the road, and that, in the opinion of the commissioners at least, they actually have varied, or of necessity must vary, the business and wants of the community in a manner pointed out by the report, and to a degree to supersede the need of the contemplated road, and to justify the abandonment of it.

It is wholly without the province of the court to inquire _ what weight the consideration of these changes ought to have in settling the question thusxaddressed to the judgment of the commissioners, who obtain by actual survey a know!edge of the face of the country, and whose position and the course of examination which they pursue, ought to enable them to form a sound judgment respecting the business and wants of the inhabitants.

The court inspect their report for no purpose but to see if they have pursued the tenor of their commission, and have, among other requisites, reported the existence of changes of circumstances affecting the expediency of laying out the road, described with reasonable clearness the nature of the changes, and with a reasonable perspicuity, pointed out their bearing upon the merits of the case. It was not the object of the court’s rule to require of the commissioners to accompany their reports with maps of the country, or elaborate topographical description.

They are not expected to load their reports with histories of the pursuits of the inhabitants, their trade, their markets or their amusements. It is enough if they state, in general terms, the changes that have occurred, and their bearing on the question, without approaching that minuteness of detail, which would enable the court to revise their decisions upon points pertaining peculiarly to themselves. In short, we think the report in the present case sufficiently clear in describing the changes, and in pointing out their effect upon the case.

It was wholly unnecessary that it should state how far the proprietors had proceeded in the construction of the Central Railroad, at the time the road was laid, it having stated that the railroad was then laid out to Henniker, and partially completed from Manchester to Weare. It was unnecessary to state, more precisely than the report does state, what was the situation of said railroads in respect to the highway in question, or how they could affect it.

We think the report sufficiently shows both the situation of the railroads, with respect to the road in question, and how the completion of these railroads, by opening new avenues of business, new markets and new pursuits among the inhabitants, have superseded the need of the highway laid out at a time when these changes might not have been foreseen, or but in a small degree estimated. The same may be said of the third exception.

The removal of the jail from the old shire town of Hopkinton might not have been a change of great importance ; but it is properly described, and reckoned among the elements of the decline of that village, by reason of which it has become, less than formerly, a place of resort. The grand features of the change exhibited by the report, are the railroads constructed and in the process of construction, through the country where the road in question had been laid. It is a case which appeals forcibly to the recollections of every one, who has for a few years even, observed the mutations wrought by these great works.

The old avenues of travel have been forsaken, and the trade and 'industry which had previously sustained many of the villages, have been transferred to 'other places, laid open to a more convenient access by railroads, and localities but little regarded before, have suddenly assumed unforeseen importance from the same cause.

The immediate prospect or expectation of the construction of a railroad has, therefore, been justly regarded as a good cause for suspending at least the prosecution of public improvements in their immediate vicinity, till the effect of the railroad, upon the business of the country, can be either safely calculated or actually tested.

And road commissioners, in the exercise of the discretion and legal judgment with which they are clothed, have reported the projection and laying and the probability of the construction of a railroad, which, if put in operation, might diminish materially the business which would otherwise probably be done upon the contemplated highway, as a change of circumstances, and it has been holden by this court to be such within the rule. Such was the case of the petitions of Littleton and Bethlehem, cited in the argument.

The present case differs somewhat from that, indeed, for' here the railroad was laid out and in the process of construction, when the highway was laid. But the extension of the railroad into -the vicinity of the highway changed, it seems, the aspect of the case in the view of the commissioners.

Whether the expectation of the railroad operated upon the minds of the commissioners who laid the highway, by leading them to suppose that the railroad would create new and important uses for it, which, upon the extension of the railroad, turned out otherwise, or whether that board of commissioners put out of view the influence which the railroad, if built, might exert upon the business of the country, does not and need not appear to us. It is easy to imagine either alternative, if necessary.

But we have, in fact, nothing to do in the case but to decide whether a railroad, actually built and in operation, is so different a thing from a railroad merely laid out and granted, as that the road commissioners may legally regard such building as a change, if they do in fact regard it as a change affecting substantially the business of the country, in the manner set forth in their report, and, to the extent there indicated, affecting the necessity and expediency of proceeding with the contemplated highway. And we have no hesitation in saying that they legally might so consider and regard it.

Exceptions overruled.