43 Me. 356 | Me. | 1857
This is an action of trespass quare clausum against the defendants for breaking and entering the plaintiff’s close, situate in Yassalborough, and constructing their railroad across the same. The defendants filed a plea of not guilty, and a brief statement alleging an authority under their charter, dated August 10, 1848, for the doing of the
By the terms of their charter the defendants are authorized and empowered to locate, construct, and finally complete", alter and keep in repair their railroad; and they are invested with all the powers, privileges and immunities necessary to carry into effect the aforesaid purposes and objects; and for that purpose have the right to purchase, or take and hold so much of the land and other real estate of private persons and corporations, along the route described in the first section of said charter, and an act of amendment passed February 5, 1853, as may be necessary for the location, construction, and convenient operation of said railroad; the land so taken not to exceed six rods in width, except where greater width is necessary for the purpose of excavation or embankment ; provided, also, that in all cases said corporation shall pay for such lands so taken, such price as they and the owner or respective owners thereof may mutually agree on; and in case said parties shall not otherwise agree, then said corporation shall pay such damages as shall be ascertained and determined by the county commissioner’s where such land may.be situated, in the same manner and under the same conditions and limitations as are by law provided in the case of damages by the laying out of highways. And .the lands so taken by said corporation shall be held as lands taken and appropriated for highways. It is contended in defence that these provisions fully authorize the acts which have been committed.
The extent of such authority has been fully considered by this court in the case of Cushman v. Smith, 34 Maine R., 247, in reference to the charter of the Buckfield Branch Railroad Company, in which precisely the same provisions are contained as those upon which the defendants rely. That charter was passed July 22, 1847. The opinion in that
In that case it was held that that provision in the declaration of rights, contained in art. 1, sec. 21, of our constitution, which declares that “ private property shall not be taken for public uses without just compensation,” while it prevents the acquisition of any title to land or to an easement in it, and does not permit a permanent appropriation of it, as against the owner, without the actual payment or tender of a just compensation, does not operate to prohibit the legislature from authorizing a temporary exclusive occupation of the land of an individual, as an incipient proceeding to the acquisition of a title to it, or to an easement in it, for a public use, although such occupation may be more or less injurious to the owner. Such temporary occupation, however, will become unlawful unless the party authorized to make it. acquire, within a reasonable time from its commencement, a title to the land, or at least an easement in it. If the defendants would have acquired any such title or easement in the land of the plaintiff, without his consent, the burden was upon them to see to it, that the proceedings necessary to such acquisition were instituted and completed, and that the payment of compensation required by the constitution was actually made or tendered. If they have neglected to do so for an unreasonable time after entering into the exclusive occupation of the land, then the acts complained of have become unlawful, and an action may be maintained therefor. In such case the defendants may properly be regarded as trespassers from the beginning, and damages may be recovered for such acts and the unlawful occupation connected therewith. Their failure or neglect to acquire a title in pursuance of their charter within a reasonable time after taking exclusive possession of the land, if they have so failed or neglected, places the plaintiff in the same position, so far as bis rights are concerned, as if no legislative authority had been conferred upon the defendants to occupy his land.
The question then arises, whether the defendants had in fact, after taking the exclusive possession of the plaintiff’s land, and prior to the inception of this suit, delayed, beyond a reasonable time, the performance of that condition upon which alone, according to the true construction of the clause in the constitution before cited, their title to the land or an easement in it can have become perfected, so that by such unreasonable delay they have forfeited their chartered, rights and made the acts complained of unlawful from the beginning. What is a reasonable time, depends upon all the circumstances of the case.
The provision of the constitution before referred to, says Shepley, C. J., in the same case before cited, “ was evidently not intended to prevent the exercise of legislative power to prescribe the course of proceeding to be pursued to take private property and appropriate it to public use. Nor to prevent its exercise to determine the manner in which the value of such property should be ascertained, and payment made or tendered. The legislative power is left entirely free from embarrassment in the selection and arrangement of the measures to be adopted to take private property and appropriate it to public use, and to cause a just compensation to be made.” The only constitutional restriction upon such power, is that it shall be so exercised as not to permit the owner to be deprived of his title to it or any part of it, with
By the R. S., chap. 81, sec. 4, no application by either party to the county commissioners to estimate the damages can be sustained, unless made within three years from the time of taking such real estate. The time of taking here referred to, must be the time of entering into the occupation of the land, and not the time of the acquisition of a perfect title, nor the taking to which reference is had in the constitution. This is apparent from the construction which the word “ taken ” has received in that instrument, in the case of Cushman v. Smith, before cited. Nor can it be properly understood that the statute, under all circumstances, authorizes such application to be made in all cases at any time before the expiration of the three years. The plain implication from it is, that some cases may exist where a delay, not exceeding three years, to make application, may not be so unreasonable as to prevent it being made, if made within the time. It is a legislative declaration that there may be some cases where a reasonable time after the commencement of a temporary occupation will not expire until three years have elapsed. No reason is perceived why the owner of the land may not defer it as he pleases, since he may defer it altogether
It was contended by the plaintiff that this action may be maintained by force of the statute of 1853, chap. 41, secs. 4 and 5. Nothing is better settled in this state than that a charter like that of the defendants, when accepted by the
Plaintiff Nonsuit.