Thompson v. Conway , 53 N.H. 622 ( 1873 )

Isaac W. Smith, J.

In order to secure a more speedy termination of applications for laying out or discontinuing highways, the legislature, by the act of June 26,1858, ch. 2119, authorized the county commissioners to admit or reject any evidence deemed by them competent, when offered by any party, and their decision was made final and conclusive ; and no report made by them could be set aside or recommitted by the court on account of the admission or rejection of such evidence. The provisions of this act were substantially incorporated into the General Statutes in 1867, ch. 63, sec. 8, which is in these words: “ In hearings relative to highways, the commissioners may admit or reject any evidence offered ; and no report made by them shall be set aside or recommitted by the court because of such admission or rejection.” The commissioners are thus made the sole and final tribunal in judging of the competency or relevancy of evidence submitted to them. The court has no jurisdiction over them in this respect to revise their proceedings, at least in the absence of fraud or gross mistake.

The defendants ask that the report be set aside or recommitted, under the provisions of ch. 63, sec. 7, Gen. Stats., which are as follows : “Any report of the commissioners may, for good cause, be recommitted, or the same maybe accepted, and judgment rendered thereon, establishing the highway, the alterations, or other matter reported upon.” It is clear this cannot be done, unless for some cause other than the rejection or admission of testimony. Freeman v. Plainfield, 52 N. H. 146; Jones v. Goffstown, 39 N. H. 254.

A report will be recommitted when notice to a party entitled to it was not given — Parker’s Petition, 36 N. H. 84; or where there is a departure, in the laying out, from the highway prayed for — Flanders v. Colebrook, 51 N. H. 300; or for bad faith on the part of the commissioners—Knowles’s Petition, 22 N. H. 361.

The statute makes the commissioners the tribunal to judge of the necessity of the highway. In this respect, the court has no power to revise the judgment of the commissioners. It maybe that, in judging of the necessity of the highway, or in receiving or rejecting testimony, they erred. They probably frequently do. But they are a tribunal taken from among the people, elected with reference to their supposed fitness for the duties of the place, and are probably as capable of judging of the necessities of the public in this particular as any other tribunal that could be selected.

It is argued here, in behalf of the town, that, because the law has made provision whereby appeals lie from one tribunal to another, and whereby reviews and new trials are granted, and decisions of this and inferior courts reversed, therefore the findings of fact of county commissioners should also be set aside for gross errors and mistakes; and the action of courts in setting aside verdicts of juries is cited as being of analogous character.

Verdicts are set aside when' against .evidence, and when so decidedly against the weight of evidence as to make it apparent that the jury must have been misled, or have failed to consider intelligently the evidence laid before them—Clark v. Society, 45 N. H. 334 ; also, for misconduct or fraud, but not because the court would have found differently upon the same evidence—Palmer v. Portsmouth, 43 N. H. 265; Wendell v. Moulton, 26 N, H. 41.

There is no doubt of our power or duty to reject or set aside this report for fraud or misconduct on the part of the commissioners, and probably, also, for gross errors and mistakes; but all the defendants claim is, that “ the commissioners erred in judgment in finding upon the evidence that there was any occasion for the road, and that upon going into the evidence the court would be satisfied that the highway ought not to be laid out.” There is no proof, or suggestion, even, of any fraud or gross error or mistake on the part of the commissioners, unless the laying out of the road upon the evidence before them was a gross mistake. Even if we were to go into the evidence, it would be difficult, if not impossible, to consider the same as it was laid before them. Petition of Groton, 43 N. H. 91. Usually, a view of the proposed highway is taken by the commissioners; also, of those for which it is to be a substitute. This may constitute tlie most important part of the evidence laid before them, and may have exercised a controlling influence with the commissioners in coming to the result they did; but we should be excluded from the benefit to be derived from a view if we should undertake to examine into the grounds of their finding'. We must presume there was some evidence before them in regard to the necessity of the highway. How much evidence it took to satisfy them was for them to say. It might be more, or less, than would satisfy us ; but if it satisfied them, and their proceedings were otherwise regular (and the case finds that the town does not claim that they acted in bad faith), it is clear that the statute does not give us the power to go behind their report and inquire what the evidence on this point before them was, nor how much of it there was. It is sufficient if it satisfied them. According to these views there must be

Judgment on the report.