Inhabitants of Westbrook v. North

2 Me. 179 | Me. | 1822

Mellen C. J.

delivered the opinion of the Court as fpllows.

By the constitution, the public have a right to take the property of an individual for certain purposes, without his consent, making him compensation therefor; the mode being pointed' out by law. — Iq virtue of this constitutional authority, and the law made in pursuance thereof, the defendant’s land was appropriated by the Court of Sessions as a highway. The fee of the land still remained in North ; but by the order or judgment of that Court on the acceptance of the road as located, the public became the purchasers of an easement, at the price estimated by the committee. And North thereupon became entitled, by such order or judgment, to the sum awarded to him as damages. That sum he has received, and he claims a right to retain it. He admits che right of the public to purchase the casement in the manner above mentioned, and take it without his consent; but he denies that the public have any right to compel him to purchase it again, at an}r price. And the- road has bee'n discontinued. He contends that such discontinuance does not vacate the proceedings as to its location; that the original order, or judgment of Court remains in full force ; and that the discontinuance is only prospective in its operation.' We are satisfied with this reasoning of the defendant’s counsel, and do not pesy ceive how the action can be maintained. There is no promise to refund the money, either express or implied. It was received in virtue of a judgment of Court, and that judgment has not been reversed ; or, in other words, the proceedings of the Court by which the road'was laid out and established, have never been quashed. The public have only done an act by which their easement has been extinguished, but this cannot create any obligation on the part of the defendant to purchase the easement against his consent, by paying back the sum which he received for it.

Accordingly the verdict must be set aside and a nonsuit en* fpred.