Bath's Petition

Eastman, J. The revised statutes provide that any town, at a legal meeting -holden for the purpose, may discontinue any [579] highway in such town. But that no vote of discontinuance shall be effectual without the consent of the Court of Common Pleas, if such road was not laid out by the selectmen. Rev. Stat. chap. 54, §§ 1, 2. The road which is sought to be discontinued by this proceeding was not laid out by the selectmen, but by the road commissioners, and their report was accepted at the October Term of the Common Pleas, 1848. The Common Pleas, therefore, have jurisdiction of the application, and, upon proper and legal proceedings, could discontinue the road. But a motion is made to dismiss this petition upon the ground that the Court have heretofore passed upon the same subject-matter, and rendered judgment thereon. It appears that the town voted to discontinue the road on the 18th of March, 1849; and that prior to the October Term of the Common Pleas following, a petition was presented for leave to have the road discontinued. The petition was referred to the road commissioners, and, at the April Term, 1850, after a hearing upon the merits, the commissioners made a report to the Court that the road ought not to be discontinued. The Court accepted the report and refused to discontinue; and the action of the Court was a judgment on the subject-matter before them, so far as any judgment could be rendered in proceedings of the kind. It was a proper subject for the records, and was doubtless so treated and made by the clerk of the Court. In Dudley v. Butler, 10 N. H. Rep. 281, it was held, that the judgment of the Court of Common Pleas laying out a highway, is a proper matter of record: and that the extended record, as drawn up by the clerk, is the sole evidence of such laying out and cannot be impeached or contradicted. The judgment, upon an application for a discontinuance, after due hearing upon the merits, is, we think, of the same verity and degree, and equally binding upon all parties as a judgment laying out the road. The application now made is founded upon the same vote of the town, and the parties to the record are the same as upon the former proceedings. The judgment of the Court at the April Term, 1850, has never been reversed or annulled, and the question presented is, whether the Court will entertain this [580] petition and refer it to the road commissioners, or dismiss it as a matter res judicata. Were this proceeding to be governed by the authorities at common law, there- could be no doubt what the decision should be. Where the cause of action is the same, and between the same parties, the judgment of the Court is final until reversed. It cannot be altered except on review, appeal, or writ of error. Cook v. Darling, 18 Pick. Rep. 393 Martin v. Hunter, 1 Wheat. Rep. 304; Pinney v. Barnes, 17 Conn. Rep. 420; Wallace v. Usher, 4 Bibb’s Rep. 508 ; Albers v. Whiting, 1 Story’s Rep. 310; Jenkins v. Eldridge, 1 Woodb. & Minot’s Rep. 61; Granger v. Clarke, 9 Shepl. Rep. 128 ; Whittemore v. Shaw, 8 N. H. Rep. 393. And, in proceedings not after the ordinary forms of the common law, it has also been held that the decisions of the Court are final and binding. Thus, upon petition for partition of land, Cook v. Allen, 2 Mass. Rep. 462. And in proceedings upon complaint for flowing land under the statute of Massachusetts. Johnson v. Kittredge, 17 Mass. Rep. 76; Adams v. Pearson, 7 Pick. Rep. 341. But it is said that the doctrine of the Petition of Strafford, 14 N. H. Rep. 30, is sufficiently authoritative to warrant the Court in referring this petition. In that case, a former petition for leave to discontinue the road had been presented to the Court and dismissed; for what reason, does not distinctly appear, but probably for some defect of form or service. It is clear that the merits of the case had not been considered, and on the presentation of a second petition it was referred to the road commissioners. The Court say: “ What would be the effect of a decision of the commissioners, that the road ought not to be discontinued, and an order of the Court thereon is not the question before us, for it does not appear on w’hat ground the petition was dismissed.” It is true that the Court also say: “ Even if there had been a decision upon the merits of this application, it has never been the practice in this State to apply to petitions, relating to highways, the principle which obtains in adversary suits at common lawr, that a former judgment is conclusive upon all points directly in issue upon the trial, and neccs [581] sarily determined.” It is also true that the Court further say, that “the question need not be decided .at present; ” leaving the matter to be determined whenever the precise point should arise. We are aware that there has not been that strictness of practice in proceedings to procure the laying out and discontinuance of highways, that prevails in suits at common law. From the many and various interests that are connected therewith, and the diversified aspects in which the questions are frequently presented, it would be difficult to adopt any inflexible rules which might not, in some instances, do injustice. But when the merits of a case have been twice fully heard by the road commissioners, and the judgment of the Court passed thereon, we think it would be a departure from principles that are too well settled, to allow, without any statutory provision therefor, a rehearing upon the same question, between the same parties, and upon the same facts. Nothing new or varying from the former facts is presented in this case; and if the town have the right to have this petition referred to the commissioners, or if the Court will entertain it, we do not see where the matter is to have an end. A judgment is a decision of the Court, reduced to form and made a matter of record. Two reports have been made upon the merits involved in this application; one by the commissioners laying out the road, and one by the commissioners refusing to discontinue it. Both of those reports have been accepted by the Court; and the decisions had thereon have been reduced to form and committed to the records. They have thus become judgments of the Court. The statute makes no provision for further proceedings upon the same facts, and we find no authority at common law to warrant it. If the town desire any further proceedings in regard to the road, they should show another and further vote to discontinue. For aught that appears, the town would not now vote to discontinue. There may have been no change of circumstances and a majority of the town might not now desire the discontinuance. Upon a fresh vote, however, the presumption would be that new [582] facts had arisen; and the Court would probably take the same course with a petition founded upon such, a vote, as though no prior application had been made; for it thus becomes a new ease. How far the Court would go in entertaining repeated applications, made upon repeated votes, to discontinue, need not now be settled. Perhaps, as was said in the petition of Strafford, the Court would exercise a judicial discretion and reject the application. But this petition, being founded upon the same vote which formed the basis of the former application, cannot, for the reasons stated, be referred to the road commissioners. Petition dismissed.