105 Me. 529 | Me. | 1909
In this action the plaintiff seeks to recover damages alleged to have been sustained by him on account of the obstruction by the defendant of a right of way three rods in width which the plaintiff claims to own leading from his land across the defendant’s railroad tracks and location to the highway running to the village of Mars Hill.
The defendant admits that in pursuance of the requirements of section 26 of chapter 52 of the Revised Statutes and the decision of this court in Wilder v. Maine Central R. R. Co., 65 Maine, 332, the company did erect and endeavor to maintain legal and sufficient fences on each side of its location at the point in question, and thereby necessarily closed and obstructed the way which the plaintiff claimed to own ; but the defendant denies that the plaintiff had any right of way across the locus in question prior to or at the time of the taking of the land by the defendant under eminent domain for the location of its railroad. The original location of the railroad in 1892 was changed in 1894. Among the variations then made was the location over the three rod strip now claimed by the plaintiff as a right of way. This modified location was approved by the railroad commissioners October 2, 1904, and it is conceded that prior to that dale no right of way across the land in question had
At the time of the location of the defendant’s railroad and for some years prior thereto, Frank H. Lavine owned the land covered by it at the point in question. There was a gravel pit on his land at or near the river from which Lavine had been accustomed to sell gravel and sand for many years prior to the location, and it appears from the evidence that the purchasers of the sand during those'years had driven their teams over Lavine’s land to and from the gravel pit until a well defined farm road appeared where the plaintiff now claims a right of way. In times of drought and as occasion might require, the neighbors were also allowed to drive their horses and cattle over this road to the water at the river. After the year 1900 the plaintiff had driven over this road to his starch factory and mill and continued to cross at that point after the location and operation of the railroad. The principal witness for the plaintiff upon this branch of the case thus testifies: "In the first place it was simply a path. Mr. Lavine, the old gentleman, drove his cattle there in the winter season. We all had access to that to water our horses. And then he had a sand pit down there, and later he sold sand. I have been there many a day with a team in company with other men to the sand pit, and it has been a road for years, long before the railroad.”
This is substantially all of the evidence in the case upon which the plaintiff’s claim of a right of way by prescription is founded, and it is manifestly insufficient to establish the proposition. Search is made in vain for any evidence having a necessary tendency to ‘show that this way had been traveled by the public generally adversely to the rights of the owners of the land for a period of twenty years. On the contrary it satisfactorily appears from all the evidence that the use of the road by Lavine’s neighbors and customers was purely permissive, and it is obvious that no term of
In confirmation of this view is the significant conduct of Lavine himself. June 13, 1895, he conveyed to Houghton and Richards a portion of his farm, including a right of way three rods wide extending to the county road, the location of which was identical with the right of way claimed by the plaintiff. It is a justifiable inference that at that time more than eight months after the final location of the railroad approved by the railroad commissioners October 2, 1894, Lavine did not understand that the public had a right of way there acquired by prescription ; otherwise he would not be expected to make a conveyance of it to Houghton and Richards in disregard of such prescriptive right in the public.
But even if it be assumed that the plaintiff had a right of way by prescription as claimed by him, it would seem from well established principles of law that such an easement was extinguished' when the defendant took the land covered by its location as for public uses. See Revised Statutes, chapter 51, section 24 and chapter 1, section 6, par. X. Googins v. Boston & Albany R. R. Co., 155 Mass. 505; 1 Lewis on Em. Domain, section 262 A Note 3.
But the plaintiff contends that he not only had a right of way by prescription, but that he acquired one by deed. He claims that he succeeded by intermediate conveyances to the right of way three rods in width conveyed by Lavine to Houghton and Richards by his deed of June 13, 1895, above mentioned. But as already observed, it appears that the final location of the defendant’s railroad with a variation covering the land in question, was approved by the railroad commissioners October 2, 1894, more than eight months before the execution of this deed by Lavine, and that long before that time the defendant had constructed and equipped its railroad and was engaged in running its trains over the location and across the way claimed by the plaintiff. If that part of the three rod strip claimed
It satisfactorily appears that the defendant duly filed its location as stated above and followed and observed all of the preliminary steps and proceedings required by the statute as essential to authorize the company to enter upon the premises in question under and by virtue of its charter. It is provided by section 31 of chapter 51, R. S., that for land thus taken for the location of a railroad, "the owners are entitled to damages to be paid by the corporation and estimated by the county commissioners on written application of either party, made within three years after filing the location.”
In Davidson v. B. & M. Railroad Co., 3 Cush. 91, Chief Justice Shaw says (page 106) : "The act of filing a location is a formal act of the assertion of a right, and it is notice to the public and to all parties interested. It is a mere act of location and the land may be considered prima facie as taken and the party then owner may claim
In this case, however, it has been seen that not only had the approved location with the requisite plan been duly filed covering the three rod strip claimed by the plaintiif, but there had been actual occupation of the land taken and the road had been constructed and in operation more than six months prior to the execution of the Lavine deed June 13 , 1895.
It is obviously immaterial whether the damages are estimated and awarded by the county commissioners according to the statute or adjusted by mutual agreement between the land owner and the railroad company. In this case the damages were agreed upon between the parties November 15, 1895, and on the same day were paid to Lavine who was the owner of the land at the time of the taking, and in consideration thereof Lavine gave to the defendant a deed of all the land covered by its location. But all of the other proceedings prescribed by statute as requisite for a legal condemnation had been duly observed and this conveyance for a public use vested in the defendant the same rights that it would have acquired by an assessment and payment of damages according to the statute. In either event the title becomes perfected from the time of "taking the land by filing the location.” II Lewis on Eminent Domain, 293-294 ; Pierce on Railroads, 218. It is manifestly competent for the owner of land taken for public uses to waive the formality of a statutory assessment of damages and when he voluntarily accepts a satisfactory amount agreed upon between the company and himself, the constitutional guaranty of a "just compensation” is fulfilled. It is also competent for the land owner to waive the payment of, any compensation whatever. U. S. Peg Wood Co. v. B. & A. R. R. Co., 104 Maine, 472.
Judgment for the defendant.