Sawyer v. Town of Keene , 47 N.H. 173 ( 1866 )

Nesmith, J.

The plaintiffs made their original application in writing addressed to the selectmen of Keene, under the power of the statute of 1848, requesting them to award special damages to them, which they say they have sustained, in consequence of the change, or alteration, or raising of a public highway, called Spring street, upon which the house of the plaintiffs fronts. The board of selectmen having neglected or refused to act in the premises, for more than thirty days, the said applicants come up to the trial term of this court by their petition. In other words, the aforesaid chapter 725 of the Laws of 1848 ordains that any person aggrieved, &c., may petition the court of Common Pleas for redress, as is provided by the ninth section of chap. 50 of the Revised Statutes. The first section of chap. 725 provides, that whore 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, 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 second section of said act provides that the owners of such house, &c., may apply in writing to the selectmen 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, as is provided in chap. 49, of the Revised Statutes, in cases of laying out highways, and shall, within thirty days from the time of receiving such application, file the same with their doings thereon with the town clerk of said town, who shall record the same.

Sundry formal exceptions are now taken to the sufficiency of the original application made by plaintiffs to the selectmen of Keene. The first technical defect suggested by the town, is, that the recital of facts in the original application commenced with a whereas, instead of a positive averment. A material averment under a whereas, though formerly held incurable, is now amendable at common law, and is ill only on special demurrer. Gould’s Plead, sec. 33; 1 Chitty’s Plead. 375 ; 7 Johnson’s Rep. 109 ; 2 Mass. Rep. 358.

The second objection is more strongly insisted on, that there should be the same application or statement of facts for the action of the selectmen, that are required to be stated in a petition to the court, presenting the same case. The original application to the selectmen and to this court, both make a part of the case before us.

The injurious alteration or repair complained of here, in the original application, was the raising ot the highway in front of plaintiffs’ house, in Spring street, and north-west of plaintiffs’ house, by which great damage has been done to the land and buildings thereon, for which the owners ask indemnity. By legal intendment we may properly infer that this repair or alteration had been made by some of the constituted authorities of the town of Keene, embracing either the surveyor of highways for that district, or the selectmen, or some other authorized agent. With this fair intendment, we have the names of the suffering parties also fairly set forth, and the locality of plaintiffs’ land and buildings, and where the repair of highway was made, stating how actual damage has been done to petitioners’ land and buildings, and accompanied by the request by the plaintiffs to the selectmen, that they should assess the damages, occasioned by such alteration, in conformity to sections 18 and 19 of chapter 52 of the Compiled Statutes.

The application is dated the 26th day of December, 1863, and signed by plaintiffs. The statute prescribes no particular form. We think this application was sufficient. It could be fully understood by the selectmen. The applicants comprehensively stated what was wanted. And an award of the selectmen, founded on this application, would have been binding, if the selectmen had thought proper to have acted in the premises. General allegations were sufficient for a tribunal like the board of selectmen; the rest is left for proof. We find no material variance between this application and the petition afterwards made to this court. The latter as amended is more definite in stating the cause of the injury, and the means, and description of the actual damage, and that the selectmen were responsible for the alteration. The chief difference between the petitions is, that the first was general in its allegations, but at the same time intelligible. In the latter, a more definite and special claim is stated, and both substantially are the same. The selectmen had ample jurisdiction over the case, and ample time was allowed them before the second petition was filed here.

Objection is taken to the power of amendment by the court above. The case is in the nature of an appealed case. In such cases, where enough appears on the face of the papers to give the appellate court jurisdiction, it is in the discretion of the court to allow the pleadings to be amended, upon motion, provided no new cause of action affecting the jurisdiction of either court, would be introduced thereby. Such is the doctrine of Osgood v. Green, 30 N. H. 210, which applies, as we think, to this case.

The statute of 1848 authorizes the assessment of damages in this class of cases, as selectmen assess damages in laying out highways. The appraisal embraces all past, present and future damages, which the injurious alteration occasions, or can hereafter reasonably produce. A new alteration may work a new injury. This case is tried and determined upon the facts as they now exist.

We think the court gave to the jury the correct and proper mode for the assessment of damages. In Carpenter v. Landaff, 42 N. H. 220, and cases there cited, this doctrine is fully discussed. There must be

Judgment on the verdict.