Opinion
No. 4670.
Argued November 5, 1958.
Decided November 28, 1958.
1. The determination by the county commissioners, after a view, that a public need existed for the laying out of a class VI highway was supported by the evidence and was not the result of "gross mistake" within the meaning of RSA 234:39.
2. So also, the award of damages by the commissioners occasioned by the layout of such highway by them was not unreasonable as a matter of law and hence there was no error in the Trial Court's acceptance of the commissioners' report.
APPEAL, by the plaintiff Mary W. Tracy, under RSA 234:24, from the findings of the selectmen of the defendant town of Surry, in laying out a class VI highway upon a petition filed by Arline and G. L. Goodnow under RSA 234:1, 19. The Superior Court, upon the appeal, referred the petition to the county commissioners, and further hearings were held pursuant to RSA 234:38. The commissioners, one commissioner dissenting, made certain findings and rulings and laid out the highway over the same location as had the selectmen.
The report of the county commissioners, which was approved by the Superior Court and which followed in detail that of the selectmen, provided that the layout should be subject to gates and bars to be erected and maintained by the Goodnows, their heirs and assigns, and that they should bear the entire cost of land damages and expenses of constructing and maintaining the highway except to the extent that it should be used by other members of the public "who shall contribute an equitable and proportional share of such maintenance cost, until such time as the gates and bars shall be removed by further proceedings or the said highway discontinued as provided by law."
After hearing on the commissioners' report, the Court made the following order: "The report of the commissioners is accepted." The plaintiff excepted to the findings and rulings of the commissioners on the ground that they were guilty of a gross mistake and their findings were against the law, the evidence, and the weight of the evidence. The plaintiff also excepted to the award of $100 for land damages, as being against the law, the evidence, and the weight of the evidence. She further excepted to the Court's order approving the commissioners' report, on the same grounds.
Certain pertinent sections of RSA ch. 234, supra, read as follows: "Selectmen of a town, upon petition, may lay out any new class IV, V, or VI highway or alter any such existing highway within their towns for which there shall be occasion." RSA 234:1. In s. 18 of the same statute, it is provided in substance that any highway may be laid out subject to gates and bars, and the selectmen shall determine by whom these gates and bars shall be maintained. Section 19 provides that "whenever a highway will be of special advantage to any individual the selectmen may require him to bear such portion of land damages and expenses of constructing and maintaining it, and the gates and bars across it if any, or any of the same, as they may deem just; and the highway may be laid out subject to such condition." Section 24 provides: "Any person aggrieved by the decision . . . in the laying out or altering of a highway, or in the assessment of damages therefor, may appeal therefrom to the superior court . . . ." Section 39 provides, in reference to a hearing by the commissioners, that "they may admit or reject any evidence offered; and there shall be no appeal from their findings on the matter of occasion for the laying out of the highway or alteration thereof in the absence of fraud or gross mistake." Further facts appear in the opinion. Transferred by Grant, J.
Faulkner, Plaut Hanna (Mr. Hanna orally), for the plaintiff.
Howard B. Lane for the defendant.
Homer S. Bradley for the town of Surry, furnished no brief.
Since there is no claim of fraud, the first issue which we shall consider is whether the commissioners made a "gross mistake" within the meaning of RSA 234:39 in their determination that a public need existed for the establishment of the road. Underwood v. Bailey, 59 N.H. 480; Thompson v. Company, 78 N.H. 433, 436. Without detailing the evidence, it appears there was testimony that the road would be of value in fire fighting, that it would be used by the selectmen in getting to the property for the purpose of assessing it, that the power company would use it in reaching their lines, and that persons wishing to get out timber on property remote from the road would also find it both convenient and necessary. There was substantial evidence that the proposed road was the only practical route to this section of the area. In addition to this, the selectmen and the county commissioners. took a view which may have furnished a vital part of the evidence. Gelinas v. Portsmouth, 97 N.H. 248, 251, and cases cited. True, there was sharply conflicting testimony, but the contradictions and the weight of the evidence were for the "sole determination" of the commissioners in the absence of fraud or gross mistake. Waisman v. Manchester, 96 N.H. 50, 56.
To overturn the commissioners' findings, it is not enough that this court might have reached a different result. See Sinkevich v. Nashua, 97 N.H. 262, 265. Considering the record as a whole, we cannot say that the commissioners made a gross mistake in reaching the conclusion that a public need or occasion for the way existed. Jones v. Mason, 78 N.H. 148, 149. It follows the plaintiff's exception to the finding that there was occasion for laying out the road is overruled. Waisman v. Manchester, supra; Opinion the Justices, 98 N.H. 533.
In regard to the plaintiff's appeal on the issue of damages we are confronted with the familiar question of whether the finding was such as no reasonable person could make. In the light of the record as a whole, including the fact that the selectmen and county commissioners each took a view of the disputed premises, we cannot say that the finding was clearly unreasonable or that there was error in the Trial Court's acceptance of the report. It follows the order is
Exceptions overruled.
All concurred.