Argued December 2, 1958.
Decided December 31, 1958.
1. The Commissioner of Public Works and Highways acting under statutory authority (RSA 236:3) to design limited access highways and to regulate and restrict access thereto did not abuse the discretion thus vested in him by restricting access to a newly constructed limited access highway across plaintiffs' land to three points of access to and from their property on one side only of such highway and hence the act of the Commissioner was not ultra vires.
2. Where the act of the Commissioner of Public Works and Highways in restricting plaintiffs' access to a limited access highway under authority vested in him by RSA 236:3 was not ultra vires his act was that of the State against which no action can be maintained in the absence of statutory consent.
BILLS IN EQUITY, to enjoin the defendant as Commissioner of Public Works and Highways, from interfering with the petitioners' rights to access, air, light and view to and from a certain highway in Londonderry, and to require the defendant to remove a certain fence restricting such rights. The following facts were stipulated by the parties:
"Cecile E. Fortin and Emma N. Merrill, petitioners in these actions, each own tracts of land in Londonderry, County of Rockingham, portions of which land have been taken by the State of New Hampshire for the construction of a section of New Hampshire Route 28. This section of highway extends for approximately two miles in a southerly direction in the Town of Londonderry from the Manchester-Londonderry town line. In each case the highway has divided the petitioners' land and it has also severed an existing `wood road' located on the Merrill land which previously afforded a means of travel and access across this land. The highway as proposed and subsequently constructed is a `limited access highway' and access from the lands of the petitioners on the west side of the highway to and from the highway has been repeatedly requested and denied but a total of three points of access have been granted the petitioners on the east side of the highway. This new section of approximately two miles in length is the only `limited access' section of Route 28 in Londonderry and Manchester. A fence has been erected along the edge of the strip taken for this highway and the land of the petitioners preventing access to the highway except for three gateways on the east side of the strip taken.
"Petitioners have appealed the assessment of damages by the Commission and these cases are pending in the Rockingham County Superior Court. Petitioners bring these actions for injunctive relief to restrain the defendant from interfering with their rights of access, air, light and view, to and from said highway, to order defendant to remove the fence now impeding and restricting these rights, and for such other relief as may be just. Defendant filed a motion to dismiss on the ground that in effect, these are actions against the State of New Hampshire to which the State has not consented. After a hearing on this Motion to Dismiss the case was transferred without a ruling to the Supreme Court."
The motion to dismiss filed in each case in effect invoked the defense of sovereign immunity.
The Court (Morris, J.) transferred the cases without ruling.
McLane, Carleton, Graf, Greene Brown and Jack B. Middleton (Mr. Middleton orally), for the plaintiffs.
Louis C. Wyman, Attorney General, and Jarlath M. Slattery, Assistant Attorney General (Mr. Slattery orally), for the defendant.
The question presented is whether, on the basis of the pleadings and the agreed facts before us, the plaintiffs are entitled to a hearing on the merits of their petitions in the court below.
The plaintiffs concede that it is elemental law that the State cannot be sued without its consent. It is further pointed out that these actions do not seek to interfere with the official discretion of the defendant but rest upon the charge of abuse of powers. Philadelphia Co. v. Stimson, 223 U.S. 605; Larson v. Domestic and Foreign Corp., 337 U.S. 682. The plaintiffs contend that the acts of the defendant were. arbitrary, unreasonable and capricious and beyond his authority and therefore ultra vires. If these allegations are true in fact, the defendant's acts are not those of the State and the plaintiffs are entitled to equitable relief. Conway v. Water Resources Board, 89 N.H. 346, 348; Wiseman v. State, 98 N.H. 393, 397; Wiseman v. Merrill, 99 N.H. 256, 261; Kostrelos v. Merrill, 101 N.H. 317, 319.
Whatever interference with the ownership and enjoyment of their property the plaintiffs may have sustained was occasioned by the construction of a limited access highway authorized by RSA ch. 236. Section 2 (supp.) of said chapter gives the Governor and Council authority to appoint a commission to lay out limited access facilities with broad powers to acquire property, public or private "including rights of access, air, view, and lights, by gift, devise, purchase or condemnation . . . ." Section 3 of said chapter invests in the Commissioner of Public Works and Highways authorization "to design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended."
It is apparent from the language of the statute that the sole duty of the commission appointed by the Governor and Council is to acquire land for highway purposes. Authority to determine what the layout should be rests solely with the Commissioner of Public Works and Highways, who is further authorized under said section 3 to regulate and restrict access to such highway as traffic requirements demand. Kostrelos v. Merrill, supra.
The agreed statement of facts recites that plaintiffs have been granted three points of access to their property on the east side of the highway. Beyond reciting the conclusions that the action of the Commissioner "is wholly inadequate for [their] needs" and "constitutes a great hardship and unreasonable curtailment of [their] rights . . ." the petition alleges no facts which if proved would establish that the Commissioner abused the discretion vested in him by the statute. On their face, the defendant's acts were within the authority vested in him by the statute. Wiseman v. Merrill, supra.
BLANDIN, J., was absent; the others concurred.