41 A.2d 917

AMOSKEAG INDUSTRIES, INC. v. THE BOARD OF MAYOR AND ALDERMEN OF THE CITY OF MANCHESTER.

No. 3511.Supreme Court of New Hampshire Hillsborough.
Decided April 3, 1945.

A decree of the Superior Court for the laying out of highways in the city of Manchester having been based upon a warranted finding of public necessity will not be disturbed.

PETITION, under R. L., c. 91, s. 2, to lay out certain streets. November 10, 1942, plaintiff introduced and presented to the defendant 17 new highway and grade petitions for streets in the mill

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yard of the plaintiff situated in Manchester. Defendant refused to lay out said new highways and plaintiff appealed to the Superior Court. Trial by the Court, who, after two hearings and views made among other findings, the following controlling ones:

“In 1936 the plaintiff acquired all of the property of the Amoskeag Manufacturing Co. and immediately began, by sale and lease, to divide it into smaller units, so that at the time of the hearing (July, 1943) there were over eighty different enterprises within the yards, mostly manufacturing industries of a diversified character (some for storage only) and all together employing approximately nine thousand employees.

“The whole property, exclusive of the water power development sold to the Public Service Co. of New Hampshire, and including the taxable property such as machinery and stock in trade of the individual owners and tenants, was assessed in 1943 for the purpose of taxation for nearly four and one-half million dollars.

“Material, supplies, equipment and finished product in most instances goes to and from the various industries by truck.

“The area to be served by the proposed streets includes the land occupied by buildings and the yards adjacent to the various mills and buildings. It lies on both sides of the Merrimack River, the larger number of buildings and the greater number of enterprises being on the easterly side. There are two canals, upper and lower, on the easterly side, which run nearly parallel with the river and with Canal Street, which is the easterly boundary of the property. There are two streets running easterly and westerly through it, with bridges over the river, viz., Granite Street and Bridge Street. Bridge Street connects with McGregor Street on the west side of the river, which is one of the westerly boundaries of the property. Access to Canal, Granite, Bridge and McGregor Streets would give outlets to now existing public streets from the various yards.

“The public that would be accommodated by the proposed streets would be made up in part by the employees and those who might have occasion to assist them in transportation or visit them at their place of employment, salesmen and customers doing business with employers, teamsters, truck drivers and laborers moving such things as may be needed in and out and probably a small class who might find some of the new streets a short cut or way of convenience. A survey conducted by the police department for three days whereby traffic was observed at several of the gates showed a substantial number of pedestrians, trucks, and passenger cars in and out.

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“The aggregate length of the proposed streets is about three miles. There was evidence to the effect that if they were all laid out it would require an extra police cruiser and cost an additional annual outlay of between ten and twelve thousand dollars to police them, and also require an initial expenditure for extending the fire alarm system of almost seventeen thousand dollars. The court is of the opinion that by careful planning it might be possible to reduce these figures somewhat. There was no evidence as to the probable cost of scavenger service, but it did appear that for a period of four years the plaintiff had expended for such service (not including the removal of ashes) including cost of snow removal and repairs, upkeep and lighting of the streets, as now used, sums varying from five to over seven thousand dollars per annum.

“The cost of building the proposed streets, or such of them as are necessary, would be substantially less than would be the case if they were to be built in a new development, because in most places there are usable foundations, and the land damage would be negligible. There are bridges over the canals and places which require railing which might add to the city’s legal liability.

“Taking into consideration all of the factors of the case and all of the evidence presented the court is of the opinion that public necessity requires that some of the streets petitioned for should be laid out and that as to others the petitions should be dismissed. . . .”

The petition for the laying out of eight of the streets, some on the east side of the river and some on the west side, were granted and a decree entered therefor. To this the defendant excepted, as well as to the denial of its motions to dismiss the petition and to set aside the Court’s findings.

Transferred by Young, C. J.

McLane, Davis Carleton (Mr. Carleton orally), for the plaintiff.

Joseph J. Betley, City Solicitor (by brief and orally), for the defendant.

BURQUE, J.

There is ample evidence to support the Court’s findings. Manchester is an industrial city. It depends mostly upon the industries located therein for its existence. As stated in the findings plaintiff acquired the area involved in 1936. Prior thereto it had been the property of the Amoskeag Manufacturing Company, which had gone into bankruptcy. It was salvaged

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through the efforts of a group of substantial public-spirited citizens who raised the necessary amount ($550,000) to finance the purchase of the property, through the assistance of the Public Service Company of New Hampshire who purchased the water power development for $2,250,000, and of the local banks who financed the balance. The total purchase price was $5,000,000 and the sale was made through the trustee in bankruptcy. When the plaintiff acquired the property, there was no one employed on the premises except watchmen and maintenance workers. The city was then faced with complete liquidation of a plant which had at one time employed when at its peak as many as 16,000 persons and had assessed valuation of $35,500,000. The value of such an asset to city is apparent and a paramount item in its livelihood and economic life. Were it not for the efforts of the citizens who came forward and saw to it that such a valuable plant should not be lost, but should be developed and again serve the city in its most useful agency in its existence and prosperity, Manchester would have found itself in dire circumstances. Is it then of public necessity that the streets petitioned for should be laid out and the whole area covered thereby become a part and parcel of a very important portion of the city and located in the heart and adjacent to the business section thereof? We think an affirmative answer is mandatory.

Police protection is imperative. Regulation of traffic and protection of property is required. So is fire protection, lighting, sewerage, scavenger, snow removal service, etc. These services, normally a public function, cannot be supplied unless the area is served by public highways. Sherburne v. Portsmouth, 72 N.H. 539, 542; Dow v. Latham, 80 N.H. 492, 496; Summerfield v. Wetherell, 82 N.H. 513; Heilman v. Whalley, 90 N.H. 215. It is not fair, nor is it equitable that plaintiff, a liquidating concern which has done so much for the welfare and advancement of the merchants, business men, banking institutions and other resident taxpayers of the city be asked and required to carry the burden of giving the necessary services so vital to the continued existence and prosperity not only of the industries involved but of the city as a whole. As it appears in the findings, due to assessed valuations of these industries a very substantial return in the form of taxes collected inures to the benefit of the city itself. Such returns will more than offset the cost to be incurred in the laying out of the streets and the furnishing of the necessary protection and services involved as the result of these streets becoming public highways. It is not only a question of cost,

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as the city argues, it is a question of public need. Certainly the number of concerns and employees directly served are not the only ones to be considered. What about the rest of the population also directly benefited by the activities in the mill yard so called? Are the merchants, (wholesalers and retailers), banking institutions, property owners (no doubt including many of the employees concerned) and taxpayers in general and the substantial taxpayers in particular who formed the plaintiff company to be left out of the picture? The laying out of these streets will constitute a complete highway system within an already concentrated and highly-developed industrial area, streets which already take care of heavy and public traffic, estimated “to be a third of the 216 miles of city streets,” and described as a “business center same as you have on the Main Street.” The chairman of the board of assessors in answer to the following question: “Is there any other section of Manchester which compares in any way with the Amoskeag Mill Yard for the concentration and bringing together of taxable property?” answered, “Oh, no, no. Of course not. It is a great relief to see them coming as they are down there. It is very good.” The chief of police says it should be patrolled and subjected to traffic regulations, and the fire chief says it should have adequate fire protection. In view of all these considerations there can be no doubt that a finding of public necessity is warranted. It being so a decree to lay out the highways has been properly entered. Dudley v. Cilley, 5 N.H. 558, 562; Dudley v. Butler, 10 N.H. 281; Goodwin v. Milton, 25 N.H. 458, 472; Brown v. Brown, 50 N.H. 538, 553. See also Petition of Strafford, 14 N.H. 30, 31; Gurnsey v. Edwards, 26 N.H. 224, 229.

Exceptions overruled.

All concurred.

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