Page v. Keene

49 N.H. 535

Opinion

Sargent, J.

The General Statutes, ch. 45, sec. 1, provide that “ every town shall provide one or more suitable public cemeteries for the interment of deceased persons within its limits, which shall be subject to such regulations as the town may establish.” And sec. 2 provides that “ whenever there is a public necessity for the establishment of any new, or the enlargement of any already established, public cemetery, in any town and land necessary therefor cannot be obtained in any suitable place, at a reasonable price by contract with the owner, the mayor and aldermen, or the selectmen upon petition therefor, may lay out such quantity of land as in their judgment is necessary for establishing or enlarging said cemetery, and appraise the damages to the owner, and all proceedings thereupon, and for obtaining increased damages in case the owner is dissatisfied, shall be the same as in the case of highways laid out by them.”

The General Statutes, ch. 189, sec. 3, confer power and jurisdiction upon this court at its trial terms, to take cognizance-of petitions and appeals relating to highways and property taken therefor and for other public use.”

And in ch. 63, sec. 10, Gen. Stat., it is provided that any land owner or other person aggrieved by the decision of the selectmen laying out or altering a highway, or in the assessment of damages, in any case relating to a highway, may appeal therefrom, to the supreme judicial court, by petition, within one year after the highway or alterations are made.”

Now, all proceedings upon a petition for establishing or enlarging a cemetery, and all proceedings for obtainingincreased land damages, when the owner is dissatisfied, necessarily include appeals, not only from the assessment of damages, but from the decision of the selectmen, establishing or enlarging a cemetery, as in the case of highways.

Therefore, this plaintiff might have taken an appeal, and so far as appears, may now do so, within the year prescribed, not only from the appraisal of his land damages, but from the decision, enlarging the cemetery by the addition of the plaintiff’s land, and on such appeal to the court, it will be proper that plaintiff be fully heard upon all his matters of complaint, set forth in this bill, and in that way, he will have a full, ample, and perfect remedy at law, for all the wrongs and injuries of which he here complains. Such being the case, he has no occasion to invoke the aid of equity, for it is elementary that equity will not in such case interfere.

Bill dismissed.