Camden & Rockland Water Co. v. Ingraham

85 Me. 179 | Me. | 1892

Peters, C. J.

Whilst the case of Wilson v. Eu. &. N. A. Railway Co. 67 Maine, 358, decides that a mortgagee of land taken for public purposes should be made a party to proceedings instituted to ascertain the land-owner’s damages for such taking, the necessity for such joinder is mostly, if not wholly, for the protection of the parties who take the land, that they may not be exposed to the risk of paying the damages twice. The mortgagee cannot be regarded as an indispensable party where such protection is not needed; and such is the principle deducible from the opinion in that case. Some courts do not admit the necessity of making mortgagees parties in such proceedings in any circumstances. The mortgagee certainly cannot be required to become a party when he has effectually disclaimed all claim or interest in the damages recoverable.

The presiding judge instructed the jury that no attention need be paid to the fact that the Camden Savings Bank had a mortgage on the land of this complainant because the bank had filed in the case a waiver of all claim to damages. This was correct provided the paper filed ivas a sufficient waiver, but that fact the other party denies. It seems that the paper first filed as a waiver, upon objection to it as insufficient, was taken oft' the files by counsel for the land-owner and another substituted by him in its stead without the assent of opposite counsel or of the court. We think a new trial should not b¿ granted on that account, whether the first paper filed was valid for the purposes for which it was intended or not, inasmuch as the sufficiency of the second paper is not questioned. The absence of the mortgagees as parties could not be of consequence, so long as they cannot in the future make any claim to the damages. The management of the trial w'ould be the same whether the mortgagees were in or out of the litigation, the question in relation to parties and title being incidental merely.

Counsel for the land-takers asked the judge to instruct the jury that the burden lay upon the land-owners to prove that damages were sustained by the taking, and the amount of such damages. The judge did not refuse to give the requested instruction but forgot to make mention of it. It is admitted that the omission was through inadvertence. In such case the judge should have been reminded of the request by counsel. But the omission was harmless in any view. The proposition was so self-evident as to speak for itself. The jury must have seen for themselves that only such damages should be allowed as were proved. The course of the trial and the tenor of the whole charge were to that effect. Nothing to the contrary was suggested or indicated in any way. Exceptions overruled.

Walton, Virgin, Libjbey, Foster and Haskell, JJ., concurred.