Adams v. Richardson , 43 N.H. 212 ( 1861 )

Nesmith, J.

This action is trespass against the defendant, as a highway surveyor in the town of Mason in this county, for damages sustained by the plaintiff in plowing out a ditch in the highway, adjacent to the dwelling-house of the plaintiff. The defendant claims the protection of the statute (Comp. Stat., 186), and denies that he is liable for the supposed injury. The first section of said statute provides, That where the selectmen of any town in this State, or any surveyor of highways appointed by them, or by said town, or any person acting under them, shall make or cause to be made any alteration in any street or highway, in such town, by raising- or lowering the same, or making a ditch on the side thereof, whereby any. dwelling-house, or other building, or any land adjoining may be injured, the town shall be liable to pay the damages occasioned by such alteration. The owner or owners of such house, building, or land, may apply in writing to the selectmen of such town, to assess the damages sustained by them, and it shall be the duty of the selectmen to appoint a.time, notify the. applicant, view the premises, and assess the damages in the same manner as is provided in the 49th chapter of the Revised Statutes in cases of laying out highways, and to file the same, with their doings thereon, within thirty days from the time of receiving the application, with the town-clerk of said town, who shall record the same. The third section provides for an appeal to the Court of Common Pleas, in case the party is aggrieved in the assessment of such damages, &e.

The defendant contends that if the plaintiff has suffered an injury here, by digging the ditch in front of his dwelling-house, he was compelled to seek his remedy under the aforesaid statute. There is no doubt that the power is conferred by statute upon the plaintiff to obtain his remedy agreeably to its provisions; but still, the language of the statute appears to indicate no more than a cumulative, or additional remedy. The common law remedy is not repealed by the statute. The statute is not imperative upon the plaintiff to pursue the statute remedy and no other. Ve do not feel compelled to construe the word may here to mean shall. The statute doubtless intended to give the party his election to resort to the remedy pointed out by it, or the old remedy at common law. And sucia has been the practical construction of the statute since its passage. Rowe v. Addison, 34 N. H. 306; Groton v. Haines, and other authorities there referred to; Callender v. Marsh, 1 Pick. 417.

At common law, highway surveyoi’s are liable in damages for any wanton, malicious, or improper acts, in making and repairing highways.

It is a familiar elementary principle, that statutes, made in derogation of the common law, must be construed strictly.

The legislature might wisely confine the remedy for the acts of highway surveyors, when not deemed wanton or malicious, to the towns under whose authority they act. Hitherto the statute law has not so provided. In this case there must therefore be

Judgment for the plaintiff.