State v. Wilton Railroad

19 N.H. 521

• Court: Superior Court of New Hampshire
• Decided: December 15, 1849
• Status: Published

Opinion

Gilchrist, C. J.

We may pass over for the present any questions relating merely to the forms of the pleadings, and their technical accuracy. A material question in the case is whether the report of the commissioners was authorized by the charter.

The application to the commissioners states that the corporation are unable to buy the land on either of the routes, and prays them to survey the routes and make a report. It is material to determine whether the rejoinder be a substantial answer to the replication, and for this purpose it is necessary to examine the charter.

The second section authorizes the corportion to construct a railroad on either of two routes, or any portion thereof. The first route is described as follows:

“ Beginning at any point on the Concord Railroad, between Souhegan river and the junction of said Concord Railroad and the Nashua and Lowell Railroad, thence running to Amherst village, through Milford, to some point in East Wilton, or at any point on the Nashua and Lowell Railroad, in the village of Nashville, thence to some point in East Wilton, thence to Greenfield, or to the centre village of Peterborough, and thence to Marlow.”

The other route is described as follows :

“ Or beginning at any point on the south line of the State, within one mile of Nissitisset river, thence running to some point in East Wilton, thence to Greenfield, or to the centre village of Peterborough, and thence to Marlow, as aforesaid.”

The first route requires the road to go to Amherst village. This is an intermediate bound, which must be regarded. About this there can be no doubt.

Upon the second route there is no intermediate bound until we reach East Wilton.

What course then may a route take, beginning at some point on the Nashua and Lowell Railroad, in the village of Nashville, and thence running to Bast Wilton?

It may be well to inquire what are the powers of the railroad commissioners.

By the fourth section of the act of December 25th, 1844, they are to make a survey of the route proposed by the corporation, which shall be within the limits prescribed by the charter. If their opinion be that the public good would be promoted by laying out the proposed road, they are to make a report of their decision to the governor and council, which report shall contain a description of the route surveyed. If the decision of the governor and council is in favor of laying out the road, the commissioners are to proceed to lay out the road surveyed.

The commissioners have made a report in favor of laying out the road, and the question recurs whether it is within the limits prescribed by the charter.

The corporation say it is not within the charter, for the following reasons:

1. The routes are entirely distinct, the southerly terminus of each being different from the other.

2. Therefore, it is the intention of the act that one or the other of these routes should be adopted as it stands.

3. A new route, which is neither of the routes specified, but which is composed partly of one and partly of the other, cannot be adopted.

4. The route surveyed by the commissioners has the termini of the second route, and the intermediate bound of the first route.

On careful examination of the charter, the opinion of the court is, that any route, with one terminus on the Concord railroad, must go to Amherst village, because that is an intermediate bound. But that that any route, with one terminus in the village of Nashville and the other at East Wilton, having no intermediate bound, may or may not go to Amherst village. Why such a limitation was imposed, is not for the court to inquire. Our duty is only to ascertain what the second section of the charter means, and the question may be asked what there is in the charter to hinder the second route from going to Amherst village. It is only the fact that the first route must go there, but that does not prove that the second route may not go there. If the charter did not mean that the second route should go to Amherst village, it would have been easy to exclude that conclusion, by a very few words. There is nothing in the charter which shows that the legislature meant to give the commissioners merely the power to determine which of these routes the public good required, taking them literally as they stand. Suppose they had reported in favor of the second route described in the second section of the charter, without other words of description than those used in the charter, where ought the road to be laid out? The corporation say that it ought to be laid out in as direct a line as may be, having regard to the feasibility of the ground. But the route which comprehends Amherst village may cover the most feasible ground, and if so, it is there that the corporation ought to make the road. But it is said that Amherst village must be disregarded, because it is mentioned in the first route. Then, by a parity of reasoning, Milford must be excluded, because that is also mentioned in the first route, and there is nothing in the charter to show why that should not be done. The second route, then, upon this reasoning, must be so contrived that it shall not pass through Milford, for we must avoid all the intermediate points mentioned in the first route, a result which probably the corporation would not desire to reach.

The-judgment of the court is, that the report of the commissioners is authorized by the charter. It therefore stands as a valid proceeding in the cause.

The demurrer raises both questions of substance and questions of form. The rejoinder makes no substantial answer to the replication, and upon the demurrer there must be

Judgment for the State.