1. Where the Governor and Council following appointment of a commission to lay out a limited access highway (RSA 236:2) and after defendant had released his rights of access to the State, waived any rights acquired by the release by recommitting the assessment of damages to the commission, such rights of access remained in the defendant and were subject to condemnation proceedings.
2. The fact that the taking of an appeal by the State from the award of the commission indicated a purpose to prosecute its appeal to final judgment, the evidence failed to establish that the defendant was misled thereby or was justified in not entering his appeal, and the voluntary dismissal by the State of its appeal was proper.
WHEELER, J.
The first contention of the defendant is that after the defendant released to the State his rights of ingress and egress to the Spur Road, prior to the action of the Governor and Council recommitting for assessment of damages the southern section of the Eastern New Hampshire Turnpike, there were no property rights in the defendant subject to condemnation. His second contention is that the conduct of counsel for the State prior to dismissing its appeal led counsel for defendant to believe that the matter of damages was to be determined by jury.
The State's decision not to construct the service road, resulted in nonperformance of the conditions of the, release. The action of the Governor and Council in recommitting the matter for assessment of damages amounted to a waiver of any rights acquired from the defendant by his release. The rights which remained in the defendant were subject to condemnation proceedings.
Under the provisions of RSA 233:17 the defendant had a right of appeal to the Superior Court within sixty days after the certificate of tender of the award by the commission had been filed with the Secretary of State. This the defendant failed to do.
While the discussions between counsel for the State and defendant prior to the withdrawal of its appeal tended to indicate a purpose to prosecute its appeal to final judgment, the evidence falls far short of establishing that the defendant was misled thereby or justified in not entering an appeal.
The motion of the State to abandon its appeal was analogous to the right to become nonsuit, and such a right is not open to serious question. Upper Coos Railroad v. Parsons, 66 N.H. 181; Webster v. Bridgewater, 63 N.H. 296.
Exceptions overruled.
All concurred.