Supreme Court of New Hampshire, 1859

Beery v. Hebron

Beery v. Hebron
Supreme Court of New Hampshire · Decided January 15, 1859 · Sawyer
38 N.H. 196

Beery v. Hebron

Opinion of the Court

Sawyer, J.

Tbe first exception, that tbe petition fixes an intermediate bound in the routes prayed for, comes too late, if it is to be considered that tbe “ westerly side of Newfound Pond” is an intermediate bound within tbe meaning of .the 81st rule of court. By rule 84, objections to this form of tbe petition must be taken before tbe order of reference to tbe commissioners, otherwise they will be considered as waived. By tbe neglect to make tbe objection before tbe order of reference, the exception, if in point of fact it exists, was waived.

As to the second exception, that tbe land-owners were not notified of tbe bearing on the recommitment, it must be understood that tbe exception is, that the land-owners generally, not including, however, the persons named in tbe order, were not notified. There was no occasion for such notice except to the Fowlers and Plummers. Tbe recommitment was for specified purposes, in no way affecting tbe interests of the other land-owners, and under specific instructions requiring tbe commissioners to proceed, upon due notice to tbe towns and to the particular landowners mentioned. It must be understood that notice was given to them, in accordance with tbe order. The terms of tbe order, considered in connection with tbe exceptions to which it refers, and to obviate which was tbe object of tbe recommitment, make it apparent that tbe whole purpose was to enable tbe commissioners to correct the errors into which they fell at tbe first bearing, by rejecting certain evidence offered by tbe towns, and making an irregular award of damages or omitting to make an award to the persons named Fowler and Plummer. In these matters tbe other land-owners, as such, bad no interest, and there was no necessity of going through tbe formality of notifying them anew. The order for tbe recommitment does not require nor contemplate notice to them. In reference to tbe third exception — tbe award of damages to David S. Fowler — this would seem to fall almost, if not quite, witbin *199the legal maxim, de minimis non. However this may be, the ten cents awarded have been released, and all injurious consequences to the town from this award are thereby barred. If it were necessary to decide whether the commissioners have the power to award damages for the interruption or inconvenience caused by the highway to the enjoyment of this parol license, and it should be found that they had no power to make the award, we might feel inclined to permit the petitioners to relieve their case of the exception, by depositing the sum awarded with the clerk for the use of Fowler, rather than subject them to the delay, and the towns to the expense of a recommitment for the purpose of correcting the error. The damages awarded having been released, this removes all ground of objection on this account, though the sum awarded were of sufficient magnitude to make the error in awarding it of any importance.

Exceptions overruled,.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.