Pollard v. Moore , 51 N.H. 188 ( 1871 )

Sargent, J.

This is a petition for the assessment of damages for land of the defendants, flowed or otherwise injured by means of a mill-dam erected by plaintiffs under the provisions of chapter 20 of the laws of 1868, entitled “ An act for the encouragement of manufactures.” The petition has been properly entered in court; a committee have been appointed; that committee have heard the parties, examined the premises, and made report. They have found, in the words of the statute, that “ the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this State ; and that the same is necessary for the use of the mill or mills for which said dam is designed; ” and have accordingly estimated the defendants’ damages and made report to this court.

That part of sec. 8 of said act, which relates to the question before us, is as follows: “ Upon the return of the report of said committee, any person interested therein may object to the acceptance of the same for any irregularity or improper conduct on the part of said committee ,' and said court may set aside said report for any just and reasonable cause, and, if required, shall inquire for itself whether the erection of said dam is of public use or benefit, any finding of the committee upon that point notwithstanding. And if the court shall be of opinion that the erection of said dam is not of public use or benefit, the petition shall be dismissed. But if the report shall be accepted and established, the court shall enter judgment thereon, after adding fifty per cent, to the. estimate of damage, which judgment shall be final, and execution shall issue thereon. Before the reference of such petition to the committee, if either party shall so elect, said court shall direct an issue to the jury to try the facts alleged in said petition, and assess the damages ; and judgment rendered on the verdict of such jury, with fifty per cent, added, shall be final, — and said court may award costs to either party at its discretion.”

Either party has thus the right to try the question of damages by the jury, if they so elect; but that election must be seasonably made— made before the reference of the petition to a committee, which was not done in this case, and therefore that right was waived by both parties, and cannot afterwards be claimed by either party. No objection is made for any irregularity or improper conduct of the committee; neither is the court asked to set aside said report for any cause ; nor does either party here require the court to make any inquiry for itself in relation to this matter.

But the motion here made is, that the petitioners shall be allowed to become nonsuit. The provisions of the law are clearly intended to be beneficial to the mill-owner. He can, by means of its provisions, acquire the right, not only to flow land of his neighbor without his consent, but, if that neighbor does not proceed under the act to have his damages appraised, the mill-owner may obtain an appraisal of them, so that he may pay the damages, and thus have his right to flow the land established — see sec. 4. The mill-owner is thus enabled, by instituting proceedings against himself, to have all questions settled and all controversies ended at an early day.

The plaintiffs, in this case, have undertaken to invoke the aid of a statute thus made for their benefit; have summoned the defendants into court to have their damages appraised; they have come in, and their case has been sent to a committee, who have heard the same and made report; and now, because the" damages have been assessed perhaps a little higher than the plaintiffs anticipated, shall they have leave to withdraw and leave the defendants without payment of their damages, or without any valid assessment of them, but to await the uncertain pleasure of the plaintiffs, to have their lands flowed without the right to object until other proceedings shall be instituted and another assessment of damages be made ?

A plaintiff has the right, it is said, to become nonsuit during certain stages of the proceedings ; but he has not that right after a verdict is returned in his case: Judge of Probate v. Abbot, 13 N. H. 22; Wright v. Bartlett, 45 N. H. 289. So, after a reference of a cause to arbitrators by rule of court, the plaintiff cannot rescind the rule or revoke the submission, nor can he become nonsuit, or discontinue his action. Haskell v. Whitney, 12 Mass. 47, 51; Cumberland v. North Yarmouth, 4 Greenl. 459; Bray v. English, 1 Conn. 498; Outwaite v. Hudson, 11 Eng. L. and Eq. 563, 564, and note; Dexter v. Young, 40 N. H. 130.

The committee in this case stand much in the same position, as referees or arbitrators in an ordinary case. Both parties must agree to the reference to the committee in this case, because if either objected he could go to the jury. But when, by agreement of parties, the question is sent to a committee, a rule of reference is entered up by the court, and a commission issues to the committee like the commission issued under a rule of court, and it might be doubtful whether the plaintiff could, as a matter of right, become nonsuit at any time after reference to .the committee; but however that may be, we think, when their report comes into court, it should stand like the verdict of a jury found upon the same facts, which either party might have had in place of the award if he had elected, and that there should be judgment on such report unless some cause is shown for its recommittal, or for setting it aside. The statute has given no right to go to a jury after a report by the committee, and we are satisfied no such privilege was intended to be allowed to either party. But that would be the effect, or might be, of allowing the plaintiff to now become nonsuit.

But it is said there is no review in this case, and that, unless the plaintiffs can become nonsuit, there is no way that they can have their cause reheard. If that were so, it would prove nothing. It would not be the only case where the party has no review. By chapter 126, sec. 27, General Statutes, it is provided that there shall be no review of any judgment rendered on an appeal from the judge of probate, upon any claim of a creditor. So in General Statutes, chap. 181, sec. 11, — “ There shall be no review of any judgment rendered on an appeal from the judgment of a commissioner.” So in General Statutes, chap. 187, sec. 17, — “ Neither party shall have a right of review in any suit upon a probate bond.” The fact that no review is allowed, if such is the fact, does not therefore render the law unconstitutional or invalid. We think the motion for a nonsuit was properly denied.

Nonsuit denied.