34 N.H. 282 | N.H. | 1856
The only question presented in this case arises upon the instructions of the court to the jury, that the wood upon the plaintiff’s land that had been taken for the purpose of constructing a railroad thereon, continued the property of the plaintiff, notwithstanding the railroad corporation, to whose use there was evidence tending to show it had been converted by the defendant, or the person for whom he acted, had paid the plaintiff the damages awarded him for the laying out of their railroad through his land, after an appeal taken from the assessment of the railroad commissioners and selectmen of Northumland, in which town the land was situate. This question involves a consideration of the nature and extent of the interest which a railroad corporation acquires in the land laid out by the railroad commissioners for their'road, under the laws of this State. Although such an enquiry, depending as it does in some degree upon the construction of statutes, must necessarily, from the brief period of the existence of railroads, be somewhat novel, and attended with more or less difficulty, from the want of those illustrations which the repeated adjudications of judicial tribunals have thrown upon other questions of that character; yet, so strong are the analogies between the taking of lands for the purposes of a public highway, and for the purposes of a railroad, and such the similarity of language employed by the legislature in the two cases, and so clear and unequivocal the terms used in reference to the rights acquired by railroads, that we think the result of even a limited investigation of the subject could hardly fail to be satisfactory, even if the question had not, as we conceive it has, been already virtually decided by our own courts.
It has also been deliberately decided, after an able and learned examination of the subject, that the right to use the trees, necessarily cut down From the land in constructing the highway, for the purpose of building and repairing the road, is not acquired by the laying out of a highway, but that the only right acquired in relation to trees growing upon such land is the right of cutting down and removing to a convenient distance, for the use of the land-owner, such and so many of them as it may be necessary to remove in order to make or repair the road in a proper manner. Baker v. Shephard, ubi supra.
The same doctrine has obtained in other jurisdictions. . In Adams v. Emerson, 6 Pick. 57, it was holden by the Supreme Court of Massachusetts that the owner of land laid out for a turnpike, regarded in that State as well as in this as a public highway, has the exclusive right of property in the land, subject to the easement, or right incident to a public highway, and that the herbage, as well as all trees and mines, are the exclusive property of the owner of the soil.
In Barclay v. Howell, 6 Peters 498, it was decided by the Supreme Court of the United States, that by the common law the fee in the soil remains in the original owner, where a public road is established over it; and while it is used as a highway he is entitled to the timber and grass which may grow on the surface, and to all minerals which may be found below it.
Unless, then, a railroad corporation, by the laying out of their road over and across the lands of individuals, acquires a higher, more extensive and more exclusive right than the public and the public authorities gain by the laying out of such lands as a public highway, there can be no doubt the trees in controversy continued to be the property of the plaintiff, notwithstanding the award of damages and its payment, and the instructions of the court below were strictly correct.
Does the railroad corporation acquire any such higher, more extensive and more exclusive right ? A careful examination of the various statutes authorizing the taking of land for railroads, and a comparison of the language with that of those statutes providing for the taking of land for highways, satisfies us it does not; and we see nothing in the use to which the land is appropriated in the one case and the other, requiring the same phraseology to be differently construed in the two cases. By the theory as well as the letter of the law, the taking in both cases is for the public use, and that use is no more inconsistent with the continuance of the fee in the original owner in the case of a railroad than in that of a highway. The damages are assessed in substantially the same mode in both instances, and are to be the same in both.
The commissioners and selectmen are required to assess the damages sustained by the owners of land by reason of the laying out of a railroad, in the same way and manner as road commissioners in the several counties are required to do, (Comp. Stat., p. 848, sec. 10,) and these latter are required to assess the damages sustained by owners of land as selectmen of towns
In Dearborn v. The Boston, Concord and Montreal Railroad, 9 Foster 185, which was an appeal by a land-owner from the award of damages made to him by the railroad commissioners and selectmen, for land taken for the defendants’ railroad, the court said : “ The damages, then, which are to be found by a jury on the trial of a case like the one before us, are to be the same which selectmen would assess in a case of taking land for a highway.” It would follow, most conclusively, that if the same damages are to be awarded, they must be given for the same injuries sustained, and none other, and that the same rights would be acquired in one case as in the other, as the consequence of the award.
The land-owner can maintain no action for the damages assessed to him, until after the corporation have entered upon the land taken, for the purpose of constructing a railroad thereon. Comp. Stat., p. 344, sec. 17. Why this provision, if, by the laying out of the railroad, anything more than the right of way, which might never be exercised, passed to the corporation ? If the title and estate of the land-owner in the land were divested out of him by the acceptance of the report laying out the road and awarding damages, his right to compensation would be as perfect and his claim therefore as just and reasonable, before as after an entry upon the land for the construction of the railroad.
If the statutes had contained nothing further on the subject than the provisions to which we have already adverted, there could scarcely have been a doubt, that, upon the taking of land for a railroad, only an easement, or right of using the same for the purposes of a railroad, passed to the corporation, the fee remaining in the original owner. But the matter is not left thus. As if to remove every vestige of doubt, far more explicit terms are elsewhere employed on this subject.
By the statute under which the land was taken for the rail
Hardly any language could make clearer than these provisions the precise nature and extent of the interest acquired in the land by the laying out of the railroad. Whatever is acquired vests in the State, is by the State leased to the corporation on the receipt of what it cost, and upon the expiration of the
In Dearborn v. Boston, Concord and Montreal Railroad, before cited, although the precise question now under consideration was not raised, the court said, that, by the award of damages, “ the corporation acquire the right to construct their road in any suitable and proper manner, for their own convenience and the public accommodation, and the right to vary and change that construction, within the established limits of the road, from time to time forever, until the State resume the right and privilege of the corporation, or until the charter be altered, repealed or annulled.”
In Northern Railroad v. Concord and Claremont Railroad, 7 Foster 195, 196, it was holden that the easement of a railroad in the land over which it was laid out, received by a lease from the State, might be taken from it for the use and benefit of another railroad, upon the appraisal and payment of damages, in the same manner as in the case of a turnpike corporation, a toll bridge, or a ferry, the railroad for whose use it was taken, as well as that from which it was taken, being regarded as public highways under the laws of this State.
It has been holden in Yermont, that where the charter of a railroad corporation provided that the company, upon complying with the conditions on which they might take land for the use of their road, should be “ seized and possessed of the. land,” this did not make them owners of the fee, but only gave them a right of way. Quimby v. Vermont Central Railroad, 23 Vt. (8 Washb.) 387.
Without adverting to numerous cases in other States, where it
The instructions to the jury were consequently correct, and there must be
Judgment on the verdict.