Aldrich v. Cheshire Railroad

21 N.H. 359 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

The • act of November, 1844, requires the commissioners “ to assess the damages sustained by the owners of land.” Whether the commissioners take into consideration all the circumstances proper to be adverted to by them, depends on their attention to the subject, and their capacity to come to a correct conclusion. But the result they reach is conclusive upon the party, unless there be an appeal from their decision. This is plainly the intent of the statute, for the institution of this tribunal would be useless, unless their estimate should .be regarded as final. Any other view of the question would lead to great practical difficulties; for if we might go behind their assessment, it would be impossible to draw any line beyond which we should not proceed. There would be scarcely any injury a land-owner could sustain, which might not be said with more or less plausibility, to be one which the commissioners did not take into consideration. They are not bound to specify each injury and the sum awarded for it, and thus enable us to ascertain in what manner and upon what grounds their judgment has been made up, and when this is not done it is obviously impossible for the Court Ho say, that for°this or that special injury the land-owner has received no compensation. To require this of them would take from them all power of action as an independent tribunal. It would not permit them to exercise their own judgment without any supervision over the merits of a case, as the statute intended, unless where an appeal has been interposed; but would compel them to be interrogated, and in a manner cross-examined as to the mode in which they had discharged their duties. Having the power to consider all the injuries the owner has sustained, and having made an assessment, the presumption is that they have done their duty, and have considered all matters worthy of their attention.

It is a well-settled principle in this State, that when the legislature has authorized an act, the necessary and natural consequence of which is damage to the property of another, and at the same time has prescribed the particular mode in which the damage shall be ascertained and compensated, he who does the act cannot be liable as a wrongdoer. Lebanon v. Olcott, 1 N. H. Rep. 339; Woods v. Nashua Man. Co. 4 N. H. Rep. 527. Both these cases were actions on the case for erecting dams, and causing injury thereby to the respective plaintiffs, and in each of them damages were awarded by a committee designated in the charter of incorporation, and the position above stated was not denied by the plaintiffs.

If we were to consider the remedy by the award of the commissioners as merely cumulative, we should defeat the manifest object of the legislature, which was, not to give an additional remedy to the party injured, but to substitute one proceeding for another, in the first instance; and this mode of indemnity was supposed to be more convenient than the other and usual remedy at common law. In other States the decisions have been similar to those in this State. Stevens v. The Middlesex Canal, 12 Mass. 466. In the case of Steele v. The Western Inland Co. 2 Johns. 283, the legislature authorized the defeñdants to dig a canal through the property of individuals, and provided for the appointment of appraisers to assess the damages. The plaintiff brought an action on the case against the defendants to recover damages, among other things, for the injury occasioned by stopping up his cross-ditches and drains. But it was] said by Mr. Justice Thompson, that this must necessarily have been taken into consideration in the appraisement of the damages and compensation to be made the plaintiff in the first instance. “The law required the appraisers to ascertain the value of the land, and the damages sustained by the owner in consequence of the appropriation of it to the use of the company. The injury on this score was inseparable from the very act of making the canal, and not occasioned by any neglect of a duty enjoined by law.”

There is nothing in the present case to show, that the damage complained of was not the necessary consequence of a lawful act. That the commissioners could not probably have anticipated as a matter of fact, the cutting off the stream of water in the place excavated for the railroad and the consequent injury to the plaintiff, may be an argument against the expediency, but not against obligation of the law in question. As it does not appear that the cuttings and excavations were not made in a proper and reasonable manner, we think the action cannot be maintained upon these facts. Verdict set aside.