96 Me. 392 | Me. | 1902
This case is presented to the law court on report. It is an action on a bond dated November 16, 1897, given by the defendants for the purpose of obtaining the plaintiff’s consent that the narrow gauge railroad, located by the Wiscasset and Quebec Railroad Company, might be constructed across his land before the damages had been paid or legally estimated. The condition of the bond is as follows:
“Whereas the United States Construction Company is about to construct a narrow gauge railroad leading from Burnham to Pitts-field and crossing the land of said Enoch E. Pennell as indicated by the location of said railroad filed with the register of deeds in the counties of Waldo and Somerset. Now if the said United States Construction Company shall well and truly pay to the said Enoch F. Pennell any and all land damages and costs of court adj udged by the county commissioners of Somerset county to be due said Enoch F. Pennell by reason of the construction of said railroad across the land of said Pennell as aforesaid within ninety days of said adjudication of said county commissioners then this bond shall be void, otherwise to be in full force.”
Immediately after the execution and delivery of the bond the Construction Company entered upon the plaintiff’s land situated in Pitts-field in the county of Somerset, and partially constructed a narrow gauge railroad within the limits of the location filed by the Wiscasset and Quebec Railroad Company.
At a session of the county comriiissioners’ court for the county of
It appears from the statement of facts in the report that since March, 1894, the land described in the plaintiff’s petition “always has been and now is owned one undivided half by the plaintiff and one undivided half by Abbie F. Pennell, his wife.” It is also admitted that “ one of the county commissioners who assessed the damages, the only one living who acted, would testify that the board of county commissioners supposed that they were assessing the full damages for crossing the land described in the petition, and not damages for any undivided part thereof.”
Thereupon it is contended in an elaborate argument, in behalf of the defendants, that, inasmuch as their bond stipulates for the payment of a judgment awarded by the county commissioners for damages caused by the construction of a railroad across the land of Enoch F. Pennell alone, the judgment on account of which recovery is here sought, being for all the damages to land owned by Enoch F. and Abbie F. Pennell, in common, is not one which comes within the terms of the bond, and being indivisible that this action is not maintainable for the penalty of the bond or any part of it.
But the report fails to disclose competent and sufficient evidence to establish the defendants’ proposition of fact that the judgment of the commissioners included damages for land not owned by the petitioner. The personal statement of one of the county commissioners that the “board supposed they were assessing full damages for crossing the land described in the petition,” is manifestly inadmissible in
Section 19 of chapter 51, E. S., provides that “for real estate so taken the owners are entitled to damages to be paid by the corporation and estimated by the county commissioners on written application of either party,” etc. In the case at bar the written application was signed by the plaintiff, Enoch F. Pennell. It was not signed by Abbie F. Pennell. The case fails to show that she ever made any written application to have her damages assessed, and therefore fails to show that the county commissioners had any jurisdiction or authority to estimate any damages -she may have sustained. Littlefield v. Boston & Maine Railroad, 65 Maine, 248. In the record of their judgment upon the petition of Enoch F. Pennell, the commissioners “adjudge and determine that the aforesaid petitioner is entitled to damages in the sum of $392.” There is no legal evidence in the case that they awarded damages on account of any interest in the land owned by Abbie F. Pennell. In the absence of any evidence to the contrary, they will be presumed, in any collateral inquiry, to have discharged the duty imposed upon them by law to determine the fundamental question of ownership.
The other obstacles interposed by the defendants to the maintenance of this action áre effectually removed by the opinion of the court in Hunt v. Card, 94 Maine, 386.
As the damages awarded exceed the penalty of the bond, the plaintiff is entitled to recover the amount of the penalty with interest
Judgment for the plaintiff for the amount of the penalty, as debt, loith interest thereon, as damages, from May 27, 1898.
Execution to issue for the entire sum.