Appeal of Boston & Maine Corp.

493 A.2d 1130, 126 N.H. 360, 1985 N.H. LEXIS 333
CourtSupreme Court of New Hampshire
DecidedApril 11, 1985
DocketNo. 84-195
StatusPublished

This text of 493 A.2d 1130 (Appeal of Boston & Maine Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Boston & Maine Corp., 493 A.2d 1130, 126 N.H. 360, 1985 N.H. LEXIS 333 (N.H. 1985).

Opinion

Batchelder, J.

The Boston & Maine Corporation (B&M) appeals a decision of the New Hampshire Public Utilities Commission (PUC) directing the repair and maintenance of a highway bridge in Newfields passing over the B&M’s railroad track. Finding no error, we affirm the PUC decision.

B&M alleges in this appeal the following errors: (1) the Town of Newmarket had no standing to complain and the PUC had no authority to act under RSA 373:2, :3; (2) the PUC’s finding of public inconvenience under RSA 373:22 did not give it authority to order reconstruction of the bridge; (3) the PUC did not lawfully or reasonably assess B&M with costs of reconstruction; and (4) B&M is entitled to a rehearing as a matter of law for the PUC’s failure to grant or deny B&M’s motion for rehearing within the ten days specified by RSA 541:5.

On November 28, 1983, the PUC opened Docket No. DX 83-366 on its own motion “to determine whether the public safety requires the closing of the [New Road] bridge or railroad, and whether the public good requires other or additional action regarding the crossing in question pursuant to RSA 373:22.” The order was in response to a recommendation of the New Hampshire Department of Public Works and Highways, which observed structural damage to the bridge, and to the allegation of the Town of Newmarket that its residents would be seriously inconvenienced by a protracted closing of the bridge.

The PUC ordered representatives of the selectmen of Newfields and Newmarket, the commissioner of public works and highways and the director of the division of motor vehicles to sit in an advisory capacity pursuant to RSA 373:23 and ordered notice to all appropriate parties.

After a hearing on December 16, 1983, the PUC found that New Road leaves New Hampshire Highway No. 108 in Newmarket and proceeds southerly in a horseshoe fashion, returning to and termi[362]*362nating at Route 108 in Newfields. The New Road bridge in question crosses over B&M tracks in Newfields, six feet away from the New-fields/Newmarket town line, and very near the southern terminus of New Road at Route 108.

The total distance between the terminal points of New Road by traveling along New Road is approximately 2.6 miles and by traveling along Route 108 is approximately 2 miles. The result of closing the bridge to traffic would be a cul-de-sac of 2.6 miles. The fifty or so persons living on or near New Road who seek to travel south would be required to travel northerly on New Road as much as 2.6 miles and then southerly the 2 miles south on Route 108, an extra distance of as much as 4.6 miles, to reach the point on Route 108 where New Road enters. Exeter, located to the south of New Road by way of Route 108, is the local center for doctors, hospitals, shopping and other interests.

The bridge in question serves no particular segment of Newfields. All the residents of the New Road area are in Newmarket. New-market took the position that Newfields or B&M should repair the bridge. Newfields took the ppsition that it had no interest in the bridge and that the railroad should repair it. B&M alleged that Newfields owned the bridge and that, even though the railroad had maintained the bridge for the past one hundred years, it had no obligation to continue to do so.

The PUC found that the closing of the bridge adversely affected the traveling public and those requiring emergency attention. Also, maintenance crews and snow plows would have no place to turn their equipment. The PUC ordered B&M to repair the structural damage and to pay the estimated expense of $10,000 to $12,000. Newfields and Newmarket were ordered to maintain the road surface, with the cost apportioned equally between them.

B&M’s first allegation of error is that the Town of Newmarket lacked standing to complain and the PUC lacked authority to act under RSA 373:2, :3. This argument misapprehends the procedural posture of the case.

The PUC opened Docket No. DX 83-366 “on its own motion to determine whether the public safety requires the closing of the bridge or railroad, and whether the public good requires other or additional action regarding the crossing in question pursuant to RSA 373:22.” RSA 373:22 provides as follows:

“Whenever, after hearing upon petition or upon its own motion, the commission shall be of the opinion that the public safety requires the closing of any public or private crossing over a railroad at grade above or below such [363]*363railroad, it shall order the same to be closed or shall make such order as in its opinion the public good may require, and it shall thereafter be the duty of the parties affected to comply therewith.”

The PUC’s order of notice appropriately tracked the operative language of RSA 373:22. If the PUC were to make a threshold determination that the public safety requires the closing of a crossing, then RSA 373:22 empowers the PUC to make orders in the public good.

B&M does not dispute the foregoing analysis. Instead it argues that the PUC order in this case was, in essence, an order under RSA 373:2, :3, and that no petition under those sections was lawfully before the commission. RSA 373:2 provides in part as follows:

“Upon petition of a railroad, the commissioner of public works and highways, the selectmen of a town, or the mayor and council of a city, the commission, after notice and hearing, may require a railroad .. . (c) to reconstruct or otherwise alter or improve any existing bridge or underpass and the approaches thereto in instances where separation of grades has been effected ....”

RSA 373:3 provides in part as follows:

“Any order issued under RSA 373:2 shall provide for the apportionment of the cost... between the railroad and the municipality if such crossing is located at the intersection of a railroad and a highway other than [a state highway, trunk line or state-aided highway].”

B&M’s position is that only RSA 373:2, :3, and not RSA 373:22, give the PUC the authority to order reconstruction and to apportion the costs between the municipality and the railroad. It argues that the Town of Newmarket was not authorized to petition under RSA 373:2 because, under RSA 373:3, Newmarket would bear no potential liability for costs. B&M further argues that RSA 373:2, :3 authorize only the municipality in which the road is located to petition.

We reject these contentions on two grounds. First, under RSA 373:22 the PUC has broad authority to order the crossing closed or to make “such order as in its opinion the public good may require.” While this power may overlap at times with the PUC’s power under RSA 373:2, :3 to order reconstruction and apportionment of costs, the two provisions are not inconsistent with one another.

Second, RSA 373:2, :3 do not restrict petitions by cities and towns to those cities and towns in which the crossing is located. The [364]*364statute contains no such restriction, although the legislature easily could have included one had it so desired.

Our interpretation is further borne out by the legislative history of RSA 373:2, :3. The predecessor of those statutes provided for a petition filed jointly by the proprietors of a railroad and either the selectmen of a town or the mayor and council of a city for needed reconstruction of overpasses or underpasses “located within such town or city.” Laws 1937, 123:1; P.L. 249:48.

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Cite This Page — Counsel Stack

Bluebook (online)
493 A.2d 1130, 126 N.H. 360, 1985 N.H. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-boston-maine-corp-nh-1985.