HILLSBOROUGH COUNTY. The nature of this proceeding must not be lost sight of, because the questions are raised by a form of pleading used in actions at common law. It is an appeal under the statute from the laying out of a highway, and the assessment of the plaintiff's land damages. After a long and tedious litigation, the defendants propose to surrender the main thing that has been in controversy, or, at least, the thing that has caused all the strife, by voluntarily discontinuing the road. The plaintiff says he has no objection to this; but still, if the apple of discord is to be removed, he wants it done with all the formalities required by law. He will not be relieved from the burden of the road, the laying out of which he has been struggling to defeat, unless the defendants shall first ask and obtain leave of the court to discontinue it; — and so we are invited, as it seems to me, to consider a very nice matter of punctilio indeed. I do not think it can be worth while to spend *Page 504 much time in this case upon the question of the defendants' legal right to discontinue the road without the consent of the court, inasmuch as such consent could certainly be had for the asking, and nobody's rights or interests are practically involved.
But what becomes of the other branch of the case, — that is, the appeal from the assessment of damages, upon the discontinuance of the road, — is another question.
The original assessment of damages by the mayor and aldermen was made upon the basis that the road was to be built, and used, over the plaintiff's land. Before it is either made or used, the enterprise is abandoned, and the threatened injury to the plaintiff averted by a discontinuance. It certainly cannot be said by the court, as matter of law, that the laying out, under such circumstances, was no damage to the plaintiff, although no land is now to be taken, and no injury to be caused to his other land by the construction and use of a highway.
The question is, Can it be determined in this same proceeding — that is, upon the original appeal — whether he has, in fact, suffered damage, even although the road is discontinued, and is not to be built? and, if so, how much?
It is not easy to understand why the defendants should object to such a course, saying, as it would, the expense and delay of another proceeding; — but, inasmuch as they do object, it is necessary to inquire whether there is any law whereby it is forbidden.
The statute provides that the selectmen "shall assess the damages sustained by each owner of the land on other property taken for such highway" — Gen. Stats., ch. 61, sec. 15; and, in reference to appeals, the commissioners shall consider and report upon the matters in regard to which the appeal is taken, as set forth in the petition. Gen. Stats., ch. 63, sec. 12. Now, the matter here is the damage caused by the laying out. To be sure, the elements of damage are not the same on the appeal, after the road has been discontinued, as those which entered into the computation of the mayor and aldermen; but I think the matter may, nevertheless, be fairly said to be the same, — so that, instead of there being any law prohibiting the course proposed, the statutes are clearly broad enough to tolerate if not require it.
As to costs, although it is provided that if the plaintiff recover no more damages on the appeal than was awarded by the selectmen, he shall pay costs — Gen. Stats., ch. 63, sec. 13; still, this statute was obviously intended to meet the usual and ordinary case of appeals when the road has been or is to be built; and I think the broad discretion as to costs conferred upon the court by Gen Stats., ch. 214, secs. 1, 2, may and should be so exercised as to do justice between the parties, in view of the entirely new aspect put upon the matter by the discontinuance.
The practical application and effect of these views in the present case are, that the parties may have all matters in dispute between them, as well as all questions of cost, adjusted and finally settled in the circuit court. *Page 505
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