Supreme Court of New Hampshire RockinghamOct 27, 1961
103 N.H. 456 (N.H. 1961)
103 N.H. 456174 A.2d 417

No. 4949.

Argued October 3, 1961.

Decided October 27, 1961.

1. A bill of complaint by a landowner under RSA 491:8 based upon an alleged contract with the State "through its agents or servants" whereby the State allegedly agreed to construct an access or free road for the landowner in exchange for the latter's release of certain other rights of access to a limited access highway may be maintained against the State only when it is established that the agreement was made under the authority of the Commissioner of Public Works and Highways.

2. No such bill of complaint may be maintained against the State based upon any agreement entered into by a Highway Layout Commission appointed pursuant to RSA 236:2.

3. A Highway Layout Commission appointed pursuant to RSA 236:2 has no authority to bind the State to construct access or free roads for a landowner in exchange for the latter's release of certain other rights of access to a limited access highway, and the landowner is charged with knowledge of the limits of the Commission's authority.

Bill of complaint brought by the plaintiffs William Alexandropoulos and Angelos Kostrelos against the State of New Hampshire under RSA 491:8. After the bill was filed, the plaintiffs moved to consolidate it with a petition for assessment of damages brought by the same plaintiffs against the defendant State for the alleged taking of their land. The defendant moved to dismiss the bill, claiming that the plaintiffs' only right of action is by their pending appeal for assessment of damages under RSA 233:17.

Upon hearing, the Court transferred without ruling the question whether the defendant's motion should be granted and ruled in the event that it was denied that the plaintiffs "may continue to maintain this action, and that the appeal for the assessment of damages would be dismissed, and that in the event defendant's motion is granted, the appeal for assessment of damages may continue to be maintained provided that the trial on the assessment of damages would await the outcome of this appeal."

The plaintiffs' bill of complaint alleges that the State, "through its agents or servants," represented to the plaintiffs that in the construction of the Spaulding Turnpike, so-called, under Laws 1953, c. 238, now RSA ch. 257, it would build "a frontal or free road" westerly of their property, to which free road they would have access on its easterly side. In consideration for this, the plaintiffs agreed to give the State a "slope release and release of right of access to the said Spaulding Turnpike . . . ." This free road was to extend from Gosling Road to Rockingham Avenue.

The plaintiffs further allege that they have faithfully carried out their part of the agreement, but that the State has neither constructed the free road nor paid them any damages.

The plaintiffs have also filed a petition under RSA 233:17 from the nominal damages of one dollar awarded but not paid to them by the Commission under RSA 233:18.

Further facts appear in the opinion.

Transferred by Griffith, J.

Fuller, Flynn Riordan (Mr. Flynn orally), for the plaintiffs.

Gardner C. Turner, Attorney General, William J. O'Neil, Assistant Attorney General, and William F. Cann, Assistant Attorney General (Mr. O'Neil orally), for the State of New Hampshire.

The plaintiffs in their brief say that the sole issue is whether the slope release and access rights passed to the defendant State under an alleged contract between them and the State so as to make the defendant liable under RSA 491:8.

This statute provides, so far as material, that "the superior court shall have jurisdiction to enter judgment against the state of New Hampshire founded upon any express or implied contract with the state," and that any action brought under this statute "shall be tried by the court without a jury." In the previous transfer of this dispute, the plaintiffs' petition for mandamus to compel the Commissioner of Public Works and Highways to build a service access road for them in accordance with the alleged contract hereinbefore referred to, was denied. Kostrelos v. Merrill, 101 N.H. 317. However, the court in that opinion said: "Whether any remedy is available to the plaintiffs under RSA 491:8 is a question not presented and which has therefore not been considered." Id., 320.

The main difficulty confronting us here is that the pleadings do not make it clear who allegedly made the contract with the plaintiffs. Their allegations are that the agreement was made by the State "through its agents or servants." Neither from the record in the present case nor from that in the previous transfer (Kostrelos v. Merrill, 101 N.H. 317) can we determine with certainty the identity of these alleged agents and servants. This question will have to be decided in the Superior Court, but in the interest of the efficient administration of justice, it seems advisable to resolve certain issues now.

The defendant rests its case upon the proposition that the Layout Commission had no authority to make any contract with the plaintiffs whereby the State should agree to construct an access or free road for their benefit in return for their release to the State of their slope rights, and that such powers reside only in the Commissioner of Public Works and Highways. This is correct. Kostrelos v. Merrill, supra, 319; Wiseman v. State, 98 N.H. 393, 397; RSA 236:3-5. The mere fact that the Layout Commission purported to make an agreement, if it did, does not bind the State. Bow v. Plummer, 79 N.H. 23. If the plaintiffs believed that the power existed, this does not avail them, as they are bound to take notice of the limits of the Layout Commission's authority. State v. Cote, 95 N.H. 428, 430.

Therefore, if it should appear that the Layout Commission attempted to make an agreement, the State is not bound and the pending bill of complaint should be dismissed. The plaintiffs may then proceed under RSA 233:17 for an assessment of their damages.

However, if it should appear that the Commissioner of Public Works and Highways in the proper exercise of his discretion (see Kostrelos v. Merrill, supra, 319), did determine that the free service road should be constructed and that pursuant thereto an agreement such as the plaintiffs claim was made by the Commissioner or with his authority, the State would be bound. The plaintiffs could then proceed under RSA 491:8, and the State's motion to dismiss should be denied.

The order is


All concurred.