Grand Trunk Railway Co. v. Berlin

Chase, J.

The plaintiffs, as lessees of the Atlantic & St. Lawrence Railroad Company’s property, had a right to maintain and operate the branch railroad within the limits of the way taken’ for the purpose.

Blake v. Rich, 34 N. H. 282;

Bailey v. Sweeney, 64 N. H. 296. The easement could not be encumbered by laying out a highway across the way without pursuing the course required for taking the estate of an individual for a like use. G. L., c. 67, s.

13;

Northern Railroad v. Railroad, 27 N. H. 183, 195, 196;

Opinion of the Justices, 66 N. H. 629. Among the requisites were a petition addressed to the selectmen, due notice of the time and place of the hearing upon it, and an assessment and payment or tender of the damages for the rights taken. G. L., c. 67, ss.

1, 2, 19;

c. 70, $.

4. The plaintiffs were entitled to notice and damages. G. L., c. 67, ss. 5, 19. The selectmen had jurisdiction of the subject-matter, but because of the failure to give the required notice of the hearing, they had no jurisdiction of the plaintiffs. The laying out was not for this reason void as to all persons, but as to the plaintiffs only, and in a qualified sense. The plaintiff's might confirm it, or waive their objections to it on account of want of notice. Failure to institute proceedings to set it aside within a reasonable time after they learned of it would be a waiver.

State v. Richmond, 26 N. H. 232;

Gay v. Smith, 38 N. H. 171, 174. While the law does not allow them to attack the laying out collaterally (Brown v. Brown, 50 N. H. 538;

Horne v. Rochester, 62 N. H. 347;

Fowler v. Brooks, 64 N. H. 423), it affords them ample remedy by certiorari. Moore v. Sandown, 19 N. H. 93, 99;

State v. Richmond, *170 26 N. H. 232;

Dorchester v. Wentworth, 81 N. H. 451;

Landaff's Petition, 34 N. H. 163;

Brown's Petition, 51 N. H. 367. The writ, is not awarded as a matter of right, and is withheld where substantial justice has been done in the proceedings under review, or the party has another remedy that is ample and convenient.

Tucker's Petition, 27 N. H. 405;

Boston & Maine Railroad v. Folsom, 46 N. H. 64;

Logue v. Clark, 62 N. H. 184.

The errors of which the plaintiffs complain are not formal or technical. If the laying out is allowed to stand, the plaintiffs’ property will be taken from them without their consent, without compensation, and without an opportunity to be heard upon the question of public necessity or of damages.

That this proceeding was begun within a reasonable time after the plaintiffs learned of the selectmen’s action is not questioned; nor do the • defendants claim that the plaintiffs had any other adequate and convenient remedy. For this reason, the question, whether they had a remedy by appeal at the time they learned of the laying out (G. L., c.

69, ss.

10, 11; P. S., c.

68, s.

2;

c..

288, s.

13), has not been considered.

Petition granted, and the proceedings, so far as they affect the plaintiffs, quashed.

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