Smart v. Portsmouth & Concord Railroad, 20 N.H. 233

Smart v. Portsmouth & Concord Railroad

20 N.H. 233 | Superior Court of New Hampshire | 1850

Wilcox, J.

There are many proceedings required by our law in the laying out of railroads, which are designed for the benefit and protection of the land-owners. Whether *238the public good requires a particular road to be laid out is first to be determined by the railroad commissioners, whose report, if favorable, must still be approved by the Governor and Council.

The railroad must be laid out by public officers. The damages to the several proprietors whose lands are taken for it, must be assessed by a board consisting of the railroad commissioners, and the road commissioners for the county in which the lands lie; and having: been so ascertained, must, except in some particular cases, be tendered before entry to construct the road.

The State thus acquires a right, which it may transfer, by a lease for a limited time, to the corporation ; but the corporation is the party that puts all these proceedings in motion. They, and they only, can call out the commissioners ; they pay all the expense; they deposit in the State treasury the money to pay the damages, and they alone can build the road.

Most of these proceedings, as has been said, are designed for the security of the land-owners, and undoubtedly may be waived by them. No entry to construct the road can generally be made until the damages have been tendered ; and if such entry is made, it is a trespass, and the parties are liable accordingly. But the land-owner may waive the trespass, and receive the money, if he so elect.

In this case, it does not appear that the defendants deposited the damages assessed, in the State treasury; but they tendered the amount to the plaintiff, and, so far as appears, still hold the money. We do not see, then, why the plaintiff may not, if he will, waive the trespass, the deposit with the State treasurer, and the tender by the railroad commissioners, and claim the money of the defendants, who must ultimately pay it, and who have the money in their own hands. Having entered, and in part constructed the road with the plaintiff’s money in their hands, we think he may, if he chooses, receive it of them. *239and waive its transmission in the ordinary channel, through the State treasury, which was intended solely for his benefit. If the defendants had deposited the money, the results might possibly be different.

There are various provisions in the law, referring to the right of the land-owners to bring an action for the damages assessed, which can refer only to cases like the present, because there is no pretence that an action for damages will lie against the State, or the commissioner’s. Ch. 227, sec. 4, Laws of 1845.

By this statute it is provided that no action will lie to recover the damages assessed, till an entry to construct the road; plainly implying that an action may be maintained after entry, and that the only remedy is not by trespass, or by an application to the Treasurer of the State.

After the damages were awarded to the plaintiff, and after the tender of the amount, and the entry to construct the road, the act of July 2, 1847, was passed, authorizing a change in the location of a railroad, and providing that if the damages assessed had not been paid, only the actual damage sustained at the time of such change should be paid.

But we are all of opinion that that statute does not apply to this case. The plaintiff’s right to the damages was a vested right, and was perfect and complete before the passage of that act. Hallock v. Franklin, 2 Met. 558; Huntington v. Berkshire, 2 Gr. 179; Hampton v. Coffin, 4 N. H. 517.

So it has been held that the statute of June 23, 1842, which limits the claim of the land-owner to actual damages, in eases in which the road has been discontinued before being opened for public travel, did not affeet the rights that had accrued before the statute, to recover the damages assessed upon the laying out of the highway. Willey v. Epping, Rockingham; Clough v. Unity, Sullivan county, July term, 1846.

*240In the case last named the road bad been laid and tbe damages assessed prior to tbe statute of June 23, 1842, after wbicb tbe town instituted a petition for leave to discontinue. Tbe court say, “ by tbe laying out of tbe road and tbe award of damages, a right attached to tbe intestate to demand and recover tbe sum awarded. As in Coffin v. Hampton, tbe public acquired an equivalent, in tbe right of way for such time as they might see fit to enjoy it. Tbe value of that right was judicially determined by tbe committee, who were fully instructed as to tbe contingent or determinable interest acquired by tbe public, and must be supposed to have made their award with suitable reference to tbe nature of tbe right given in exchange for tbe sum adjudged by them.”

“ Their doings became a matter of record, and tbe right-of tbe town to enter upon tbe land of tbe intestate, and construct a public way upon it, together with tbe corresponding right of tbe intestate to demand, sue for and recover tbe sum assessed as an equivalent for tbe easement to wbicb bis land was subjected, became severally established. If tbe intestate forbore to assert bis claim, tbe right of tbe town was not impaired by such forbearance; nor, on tbe other band, was tbe right of tbe proprietor, by force of tbe proceedings and by tbe record, impaired or capable of being impaired, as tbe law then stood, by any forbearance, or by any act of the town, taken with a view of renouncing tbe rights they bad acquired by those proceedings.”

This reasoning is applicable to the circumstances of this case; in wbicb tbe defendants, upon their own motion, and by force of proceedings instituted for tbe purpose by themselves, acquired an easement upon tbe plaintiff’s land, to be held and enjoyed for so long a time as they, in harmony with just views of tbe public good, should elect. This determinable interest, in tbe contingencies which affect such cases, was of short duration *241indeed; bnt it is precisely the thing for which damages were awarded, and for which the plaintiff acquired, by the defendant’s own act, a right of action. This right the legislature cannot take away.

Judgment for the plaintiff.