Toppan's Petition

Woods, J.

It is found by the case that the petition was duly filed with the clerk of the court of common pleas, and notice thereof given to the town of Dover, agreeably to the requirements of law, and that at the January term of said court, *50 1851, the town of Dover did not appear, but made default, of which a due record was made.

It is well settled that a default after notice admits every material and traversable allegation properly set forth in the declaration or petition. This is the established doctrine of the courts. Foster v. Smith, 10 Wend. Rep. 378 , and cases cited; Bates v. Loomis, 5 do., 134, Mr. Greenleaf says, if a material averment, well pleaded, is passed over by the adverse party without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby conclusively proved. 1 Greenl. Ev., § 27; Dodge v. Morse, 3 N. H. Rep. 232 ; Briggs v. Dorr, 19 Johns. Rep. 95. And where the allegations in a declaration or petition are thus admitted by a default, it is not competent for the party to give evidence in denial of them. The default will conclude him from questioning the truth of the averments. Foster v. Smith , before cited. See, also, Strange 112; 1 Bos. and Pull. 308.

There was an averment in the petition in the present case, of the presentation of a written petition to the selectmen of Dover, to lay out the highway described in this petition, and of them refusal. That averment was clearly material and traversable. The existence of those facts was necessary to give the court jurisdiction of the petition. And after the default, it was no longer competent for the town to question them. They were conclusively proved, and we are not aware that any other party is entitled to come in and controvert the facts thus admitted. The town is the party entitled by the statute to notice of the pendency of the petition, and in practice no other party is notified. The omission to notify land-owners of its pendency certainly cannot vitiate the proceedings. Their rights are secured by notice of the subsequent proceedings, giving them opportunity to be heard bn the question of damages before the commissioners.

We are not aware that it is necessary that the names of the same petitioners should be upon the petition presented to the court of common pleas that may have been upon the prior petition presented to the selectmen. The statutory provisions do not in *51 terms so require. There are obvious reasons for holding a different doctrine, if it may be done consistently with the law.' In such a state of the law, the death of a petitioner would defeat a proceeding altogether, if it occurred before signing the petition to be filed in court, and so also would even a refusal on the part of any one to sign such petition. But if that were material, inasmuch as that fact is substantially averred in the petition, it cannot now be controverted. The averment in the petition to the court is as follows, namely: “ The undersigned further represent, that they have petitioned in writing the selectmen of said Dover to lay out said new highway, as above described, and that said selectmen have refused to lay out the same.” This is in effect an allegation that the petitioners in both petitions were the same; and if we were at liberty to look into the evidence furnished in the statement of the case, the same fact would appear. The contrary is certainly not made to appear. The case shows the names of only two of the petitioners upon either petition, namely, Stephen Toppan and George Gray, and they were upon each of the petitions, with others whose names are not given. One of the petitions was designated as the petition of George Gray and others, while the designation of the other was the petition of Stephen Toppan and others. But it is not shown that the signers were not all the same persons on both petitions. In fact, the evidence, so far as it goes, shows them to be the same. The merely arbitrary difference of designation of the petitions cannot affect the case. It can in no way affect the evidence of their identity otherwise shown. We discover no sound principle upon which it can be held fhat the court of common pleas was ousted of its jurisdiction by the fact that the selectmen to whom the petition was first presented neglected to act upon it while they were in office, from December, 1848, to March, 1849, or by the fact that the petitioners omitted to file their petition with the clerk of said court until the 9th day of December, 1850, it appearing that the board of selectmen for the year 1849 refused to lay out the highway, and recorded their refusal December 24, 1849. The jurisdiction attached upon the presentation of the *52 petition, and the refusal of the selectmen to grant the prayer of it. And we see no ground for holding that the delay in filing the petition had the effect to oust the court of its jurisdiction, nor do we find any case giving any countenance to such a doctrine.

The jurisdiction of the court to entertain the petition, and to take cognizance of the subject matter of it, is conclusively shown by the record evidence in this petition; and so, also, upon reference to the other evidence which is recited in the case, we think the jurisdiction to be equally well established. The first ground of objection to the report cannot therefore prevail.

We regard the second ground of objection as being equally invalid.

The notice to Newton E. Marble was in the usual form, and was sufficient. It informed him that the petition of Stephen Toppan and others for a new highway in Dover had been referred to the road commissioners of the county of Strafford, and gave him information of the time and place appointed “ for the purpose of hearing and determining upon said petition, and upon the claims of land-owners, and others interested therein.”

It is made the duty of commissioners to give notice to the owners of land,' in the same manner as selectmen are required to give notice to the owners of land. Rev. Stat., chap. 51, § 2. It is required that selectmen “ shall appoint a time and place of hearing, and shall cause notice thereof in writing to be given to the first petitioner, and to the owners of land over which the same may pass.” Rev. Stat., chap. 49, § 2. Now, what does this provision require to be done ? That must be determined in view of the matter to be acted upon. The notice must be reasonable, under the circumstances. By the rule of court the petition presented to the court must give the termini of the way prayed for, without fixing any intermediate bounds. Rules of Court, 81. Now, when such a petition is referred to the road commissioners,. it is not in their power usually to determine, and in fact, we see not how they are ordinarily to know, over whose land the way prayed for is to be laid out; it is not shown by *53 the petition, and cannot properly be. Tbe petition is designed by tbe form of it to allow a wide latitude of discretion to tbe commissioners in tbe locality of tbe road between the fixed termini ; and it is a discretion properly to be exercised upon a full bearing and investigation of tbe matter submitted to them, which must be after tbe required notice is given. Many different routes between tbe same termini are often pointed out, some of which may affect tbe rights of one owner of land, and some those of another. Tbe commissioners are bound to look at and determine between them. Tbe most, then, that tbe commissioners can do before tbe bearing, is to give notice to such landowners as may be supposed to be affected by them action, of tbe fact that a petition has been committed to them, and that they are commissioned to act in tbe laying out of a highway, and tbe district of country within which it is to be laid out, and of tbe time and place when and where their meeting will be bad to act upon tbe petition. Very little more can be done than to follow out tbe literal requirements of tbe statute. It would be unreasonable, and even impracticable, to require that tbe notice should go farther, and give a wider range of information than was given in tbe present case. This is tbe extent to which notices have in practice carried home information to tbe parties entitled thereto, and it is believed that no injury or inconvenience has resulted from tbe want of more extended information, or greater particularity of fact in tbe notices given.

We are all clearly of opinion, that the exceptions relied upon in this case for setting aside tbe report, are wholly insufficient for that purpose; that tbe ruling of tbe court below was correct, and that there must be' Judgment on the report.