Bartlett v. Bristol , 66 N.H. 420 ( 1890 )

If the plaintiff can maintain this action, it is because the defendants have done damage to the plaintiff's land by their fault and negligence in not building and maintaining the highway in a reasonably suitable and proper manner.

The damages awarded on the laying out of a highway are such as the landowner suffers from its construction in a reasonable and proper manner. The recovery of these damages being provided for by statute, it is not claimed that an action at common law lies for their recovery; but it is said that an action may be maintained for an unreasonable and improper construction of the way, because nothing was awarded or paid for such construction. To this claim the defendants raise the preliminary question that the statute provides a remedy for the alleged injury.

It appears that when High street was first constructed, and until the grade was lowered, the water drained naturally across the plaintiff's land, doing little or no damage; but since the lowering of the grade the surface-water is gathered, by the construction of the street, ditches, and bars, and turned in a body over the plaintiff's land, doing damage. Gen. Laws, c. 72, s. 20, provides that if in repairing a highway by the authority of the town the grade is raised or lowered, or a ditch made beside it, and damage is occasioned to an adjoining estate, the selectmen may, on application, notice, and a hearing, assess the damages, and file the same with their doings with the town-clerk; and if the owner is aggrieved, he may file his petition within thirty days in the supreme court for an assessment or increase of the damages, and such proceedings may be had as in case of damages in laying out a highway G. L., c. 72, s. 21.

No good reason appears why the plaintiff has not a complete remedy, in this case, under the provisions of the statute; and if she has, it is not seriously contended that she has a remedy at common law. The evident purpose of the legislature in enacting the statute was to give a party injured the same remedy for the assessment of these damages, in substance, as is provided by statute on an original laying out. Gilman v. Laconia,55 N.H. 130, 131; Waldron v. Berry, 51 N.H. 136.

The supreme court not having original jurisdiction (G. L., c. 72, ss. 20, 21), this suit is not open to the necessary amendment, and there must be, for this reason,

Judgment for the defendants.

CARPENTER, J., did not sit: the others concurred.