Sullivan County Railroad v. Keefe , 76 N.H. 368 ( 1912 )

The plaintiffs say they should be permitted to maintain this proceeding because locating the line described in the commissioners' report will be determinative of the rights of all the parties in respect of the land in dispute. An examination of the bill shows that the description of the land to be taken, as contained in the original location, was too indefinite to be the foundation of condemnation proceedings (Dolbeer v. Company, 72 N.H. 562; Littleton v. Company, 73 N.H. 11), and that the attempted lay-out was defective. Northern R. R. v. Railroad, 27 N.H. 183. Although the lay-out was defective, no one of the defendants except the town of Walpole is in a position to deny that the plaintiffs have a valid location, for their several grantors (the then owners of the land) accepted the damages the commissioners awarded. But as the location depends for its validity on the conduct of the defendants' several grantors, and not on the report of the commissioners, the test to determine whether any one of the different tracts of land in dispute is within the plaintiff's location is to inquire what the one from whom they attempted to take it understood in respect to the matter, and not what the commissioners' report shows. In short, notwithstanding the line described in the report is relevant to the rights of the parties in respect to any of the different tracts, it is not determinative of them. That issue as to each of the different tracts must be determined on its own facts.

Case discharged.

All concurred.