Stinson v. Dunbarton

Bartlett, J. "Upon a petition for a new highway, selectmen and road commissioners may lay out a road in part new and in part over and upon an existing highway.” Raymond v. Griffin, 23, N. H. 340; Hopkinton v. Winship, 35 N. H. 215; State v. Boscawen, 28 N. H. 195. In the present case it does not appear that the road as laid out is not substantially a direct and convenient means of communication between the termini described in the petition, and no fraud is shown; we must, therefore, take the judgment of the commissioners as conclusive as to the necessity. Hopkinton v. Winship. Here, no question of jurisdiction or of an attempt to evade the statutory provisions upon that subject arises as in Newport's Petition,39 N. H. 67; and the road is laid out between the termini described in the petition; the case therefore differs from Eames v. Northumberland, 44 N. H. 67, and Ford v. Danbury, 44 N. H. 388, for in each of those cases one terminus set out in the petition was not reached in the laying out. In Cole v. Canaan, 29 N. H. 88, and in Newport's Petition, the objection was not that the new highway wag in part laid over an existing highway, but in the former that it did not conform to the petition which prayed for a new highway to intersect with an old one at a given point, and in the latter that a new highway was in fact laid out in but one town, and that, therefore, there being no occasion for a new highway in two towns, the Supreme Judicial Court had no original jurisdiction. In Sumner's Petition, 14 N. H. 268, the objections were that'the commissioners had no [388] original jurisdiction to lay out a new highway wholly in one town, and also that the laying out was not in conformity to the termini described in the petition. The case before us presents none of these objections, and we are of opinion that the first exception must be overruled. Here the recommitment was general and opened the report to amendment in any particular; Peavey v. Wolfborough, 37 N. H. 294; and the reason of the recommitment was that certain of the land owners might have opportunity to be heard. In determining whether occasion for a new highway exists, there are three things to be considered : 1st. "The public exigency and conven- ience. 2d. The burden that is to be imposed upon the town or towns where the road is to be laid out, in making and keeping it in repair. 3d. The rights of individuals whose lands may be taken for the purpose ; and the rule is that when the public exigency is such, that it will justify the taking of the lands of individuals without their consent for the purpose, and will also justify the imposition of the burden upon the town of making the road and keeping it in repair, then there is an occasion for a highway. When such a case is shown, the rights of individuals must give way to the public convenience and necessity, and the town must submit to receive the burden.” Dudley v. Cilley, 5 N. H. 560. As to the land owner the first question is whether the public exigency is such as to justify the taking of his land without his consent, and upon this question he has a right to be heard. Clarke v. Gilmanton, 12 N. H. 519; State v. Reed, 38 N. H. 60; Pierce v. Somersworth, 10 N. H. 369; Pritchard v. Atkinson, 3 N. H. 338. In Berry v. Hebron, 38 N. H. 198, and in Patten’s Petition, 16 N. H. 281, the questions related merely to the assessment of damages and not to the right of the land owner to be heard upon the general question of the laying out. In the present ease an examination of the route had been made by the commissioners before the hearing in question, in the ordinary course of their proceedings, and no question of the propriety of their conduct is suggested as in Patten’s Petition; and whether an offer by the commissioners to examine the route further, if any party desired it, would of not ordinarily under similar circumstances give the land owners, on whose account the report was recommitted, a reasonable opportunity to be heard so far as a view was concerned (see Jones v. Goffstown, 39 N. H. 257; Raymond, v. Griffin, 23 N. H. 344) we need not now consider, for by the ruling of the commissioners these new parties were to be affected as to a question, upon which they had aright to be heard, by evidence which they had no opportunity to hear or meet; and the testimony of witnesses whom they had not heard and could not cross-examine was to be weighed in the determination of tlieir rights ; and this in law and in fact amounts to a denial to them of their right to a full and fair hearing; Bunker v. Nutter, 9 N. H. 557; Webster v. Alton, 29 N. H. 384; Rogers v. Stevens, 45 N. H. 478; 1 Gr. Ev. sec. 445, and seq.; and for this reason the report must be recommitted. This reason, however, does not apply to the town, which, if it had not already had reasonable opportunity to be heard, (see Jones [389] v. Goffstown,) had certainly had full opportunity to heai and reply to the evidence and to cross-examine the witnesses, and was then offered an opportunity to be still further heard. The report must be recommitted.