Nashua & Rochester Railroad v. Lee

55 N.H. 568, 1875 N.H. LEXIS 131

Opinions

Railroad Crossings — Practice. By Gen. Stats., ch. 63, sec. 7, it is provided that the court, for good cause shown, may recommit any report of commissioners; and in Farmer v. Hooksett, 28 N.H. 244, it was held that a report might be recommitted, for inquiry into changes of circumstances happening after the hearing. It appears, by the statute above referred to, that until the report had been accepted by a judgment of the court, the case is open for further inquiry.

The case before us well illustrates the necessity of this provision. While the first of the two reports was yet pending, and before any order had been made upon its the other report was filed, by which, when brought to the notice of the court, it became apparent that the bridge would be entirely unnecessary. It would be a reproach to the law, if, in the face of such facts, of which, being evidenced by the records of the court, it would take judicial notice, it should be obliged to accept the first report, and order the bridge to be built, with the certainty that new proceedings would instantly be commenced, and the order reversed. Indeed, under Gen. Stats., ch. 147, sec. 7, I should be strongly inclined to hold that the court ought, on accepting the second report, to reject the first, and adjudge that the bridge was not necessary.

Under Gen. Stats., ch. 214, secs. 1, 2, the circuit court, having by law the same powers as were exercised by the supreme judicial court at law term, has a large discretion over the question of costs, so that it would be in the power of the court to make a reasonable and proper adjustment of them.