| Me. | Aug 4, 1876
This is a petition for a writ of certiorari to quash the proceedings of the railroad commissioners in condemning a tract of land, owned by the petitioner, situated in Bucksport, to the use of the Bucksport & Bangor railroad company.
The respondent, the railroad company, claims the right to take the land as for public uses by virtue of R. S., c. 51, §§ 2 and 3. Being unable to agree with the petitioner as to the necessity and extent of the real estate to be taken, it applied to the railroad commissioners under section three of that statute by petition, and they took jurisdiction and proceeded to act in the premises, and condemned portions of the lands described in the petition which are specifically described in their return.
The case involves the true construction of the statute before cited. For what uses may a railroad corporation take and hold land by virtue of that statute ? 'Upon this question the parties are at issue. The petitioner claims that it can be taken only for the uses specifically enumerated in § 2; the respondent claims that it may be taken for any use “necessary for the reasonable accommodation of the traffic and appropriate business of the corporation.”
The constitutional power of the legislature to authorize the taking of lands for the construction and operation of railroads is not questioned. It rests upon the proposition, now well established, that railroads are public highways, the great thoroughfares for public travel and commerce. But, in the exercise of the right of eminent domain, a grant by the legislature to a corporation to take private property as for public uses, being in derogation of the common law right of the citizen to hold and enjoy his property, is to be construed strictly; and, to justify its taking, it must be shown that all the provisions of the statute in that respect have been fully complied with. This rule of construction is so well settled as to need no citation of authorities.
Another rule of construction, applicable to this statute, is that in all grants, made by the government to individuals, of rights, privileges and franchises, the words are to be taken most strongly against the grantee, contrary to the rule applicable to a grant from one individual to another.
Another rule of construction is that in construing a statute all its parts are to be considered and such a construction adopted as will give force and effect to all its clauses, unless they are clearly repugnant to each other.
“But after all,” says Shaw, C. J., in Cleaveland v. Worton, 6 Cush. 380, “the best ground of exposition is, to take the entire provisions of the act, and ascertain, if possible, what the legislature intended.”
Applying these rules to the statute under consideration, what is its true construction ? what power did the legislature intend to
But the legislature was not willing to grant to railroad corporations this great right of eminent domain to be exercised at their discretion, but carefully guarded it by providing in section three, that, “if the parties do not agree as to the necessity and extent of the real estate to be taken for said side tracks and buildings, the corporation may make written application to the railroad commisl sioners, describing the estate, and naming the persons interested ; the commissioners shall thereupon appoint a time for the hearing near the premises, require notice to be given to the persons interested as they direct, fourteen days at least before said time; and shall then view the premises, hear the parties, and determine how much, if any, of such real estate is necessary for the reasonable accommodation of the traffic and appropriate business of the cor
What power did the legislature by this section intend to give to the railroad commissioners ? Is it, as is contended by the respondent, the powmr to determine how much of the land, described in the application to them, “is necessary for the reasonable accommodation of the traffic and appropriate business of the corporation” for any use to which it may wish to put it ? or is it the power to determine how much of it, if any, is necessary for the purpose for which the corporation claims to take it, and about wdiich the parties have disagreed, “for the reasonable accommodation of the traffic and appropriate business of the corporation.”
In construing this section, that part of it, giving the commissioners the power to determine, must be considered in connection with the first part, giving the corporation the right to apply to them, which limits the right to cases of disagreement of the parties “as to the necessity and extent of the real estate to be taken for said side tracks and buildings.” Under this clause the commissioners get jurisdiction, and it is limited to the cases of disagreement between the parties which are specified. The power to determine cannot exceed the jurisdiction granted, nor can it exceed the right granted the corporation to take lands. If the commissioners have the general power claimed for them, then they may determine that the real estate which the corporation claims to take is necessary for main track, excavation, embankment or materials, when the corporation has no right to apply to them for that purpose ; or that it is necessary for car or locomotive works, or for the purpose of taking fuel, when the legislature has not given the corporation the pow'er to take lands for such purposes.
We think it clear that the statute gives the railroad commissioners jurisdiction only in cases of disagreement between the parties as to the necessity and extent of the real estate to be taken for side tracks, depots, wood sheds, repair shops and car, engine and freight houses; and that they have the power only to determine
If there is"'any doubt about the construction of this statute the history of the legislation in this state upon this subject supports the construction which we give it.
The first general statute concerning -railroads was passed in 1836. Its provisions in regard- to the right of the corporation to take lands were incorporated into the revised statutes of 1841, c. 81, § 2. “Any railroad corporation may take and hold, under the provisions contained in this chapter, so much real estate as may be necessary for the location, construction and convenient use of their road. Such corporation may also take, remove or use for the construction of such road and its appurtenances, any earth, gravel, stone, timber, or other materials, on or from the land so taken, provided that the land so taken, otherwise than by consent of the owners, shall not’exceed four rods in width; unless when greater width is necessary for excavation or. embankment or procuring stone, gravel or other materials. These provisions were substantially incorporated into the revised statutes of 1857, c. 51, § 2. Thus the statute limiting the right of the corporation to take lands, without the consent of the owner, for all purposes except for excavation, embankment or materials, to four rods in width, remained till 1865.
But the large increase of the business of the roads had demonstrated that, in order to accommodate the public traffic and business over the roads, it was necessary to locate and erect new depots and enlarge old ones; and to enable the corporation to do so, it was necessary that it should have lands more than four rods in width. To obtain it, the corporation must submit.to the unreasonable and exorbitant remuneration which the owner, taking advantage of its necessities, might exact. If the price demanded should be so unreasonable that the corporation would not submit, the public would be deprived of reasonable accommodation for their traffic and business over the road. To obviate this difficulty the act of 1865, c. 321, was passed.
By section one, “a railroad corporation may take and hold real
Here we find used for the first time, the precise terms, contained in the present statute, which are relied upon as giving to the railroad commissioners the general power claimed by the respondent. But railroad corporations did not claim, and the legislature did not understand, that this act gave the railroad commissioners the power to condemn land for any other than depot purposes ; hence, when it was shown that it was necessary that these corporations should have the right to take land of more than four rods in width for other purposes, the legislature, by act of 1868, c. 171, amended section one, of the act of 1865 so as to give a railroad corporation the right to “take and hold real estate for depot purposes, and for all necessary tracks or side tracks, wood sheds, repair shops and car, engine and freight houses, and when the parties interested do not consent thereto,” &c. If the act of 1865 gave the general power claimed, then there was no occasion for the amendment.
The provisions of these statutes were incorporated into the revision of 1871; and still the legislature acting upon the construction we have given to that statute, that a railroad corporation had the power to take and hold, in invitum, real estate only for the particular uses specified in the statute, by act of 1872, c. 70, granted to such corporation the right to “take and hold, as for public uses, land and the materials thereon; for borrow or gravel pits, for the construction and repair of its road, in the manner and under the restrictions provided in c. 51, §§ 2 and 3 of the revised-statutes.” If section three gives the general power claimed,.
The next question that is presented is, had' the railroad commissioners jurisdiction to act on the petition presented to them by the Bucksport & Bangor railroad company by virtue of which they acted in condemning the land of the petitioner % The railroad commissioners are a tribunal created by statute, and their jurisdiction is given by statute. The petition presented to them is the foundation for their action. They obtain jurisdiction only when the petition presents a case within the provisions of the statute. Scarborough v. County Commissioners, 41 Maine, 604. Goodwin v. County. Commissioners, 60 Maine, 328. Fairfield v. County Commissioners, post.
The petition in this case does not present a case within the provisions of the statute. To give the commissioners jurisdiction, the petition should contain a description of the estate which the corporation claims, to take, naming the persons interested in it, with averments that the corporation claims to take it for some one or more of the purposes specified in the statute and that the parties do not agree as to the necessity and extent of the estate, described, to be taken for the purpose or purposes named.
The petition does not contain these averments, neither in form nor substance. It starts out with the allegation “that said corporation and Frederic Spofford of Bucksport in the county of Hancock do not agree as to the necessity and extent of the real estate to be taken for side tracks and buildings for said road.” This clause contains the only allegations of a claim by the corporation to take real estate, of the purpose for which it claims to take it, and of disagreement-as to the necessity and extent of the real estate to be taken. It does not appear what estate the corporation claims to take, nor does it appear that it claims to take any estate for one or more of the purposes named in the statute, and that the parties disagree as to the necessity and extent of the estate -to be taken for such purpose. The allegation is that they “do not .agree as to the necessity and extent of the real estate to be taken
This allegation in regard to the disagreement between the parties is followed by this request: “and in order to determine the same, said railroad company request you, as provided in § 3, c. 51, of the revised statutes, to examine and determine how much, if any, of the real estate of Frederic Spofford, who is alone interested therein, hereinafter described, is necessary for the reasonable accommodation of the trafile and appropriate business of the corporation.” Then follows a description of two parcels of real estate. But there is no allegation that the corporation claims to take the estate described for any of the purposes specified in the statute, or that the parties disagree as to the necessity and extent of the real estate described to be taken for any of the purposes named in the statute. Taking all the allegations in the petition together, they do not present such a case as to give the railroad commissioners jurisdiction under the statute.
If, however, the petition to the commissioners was sufficient to give them jurisdiction, they exceeded it in their adjudication which is as follows: “and we do now, after such hearing and view of the premises, adjudge and determine that so much of said i;eal estate, as is hereinafter by us first described, is necessary for the use of said Bucksport & Bangor railroad company, for necessary tracks, side tracks, depots, wood sheds, repair shops and car, engine and freight houses, and for the reasonable accommodation of the traffic and appropriate business of said corporation.” They adjudge the estate described necessary for tracks.
Now the statute gives to the corporation no authority to apply to the commissioners in case of disagreement as to the necessity and jextent of the real estate to be taken for main tracks, or tracks as distinguished from side tracks, and gives to the commissioners no jurisdiction to adjudicate upon this subject. And while the
They also, after adjudging the estate described necessary for the use of the corporation for necessary tracks, side tracks, and the buildings named, add, “and for the reasonable accommodation of the traffic and appropriate business of the corporation.” Here we find an express adjudication that the estate is necessary for the general uses of the corporation in addition to the specific uses named. We have already seen that under the statute the corporation has no power to take and hold land in invitum for general uses, that its power thus to take and hold lands is limited to the particular uses specified in section two. In this part of their adjudication, the commissioners exceeded their authority, and, as it is impossible to ascertain how much of the real estate described was adjudged necessary for tracks and the general uses of the corporation, the excess of authority in' these respects invalidates the whole adjudication of the commissioners on this part of the case.
We come now to the proceedings in regard to taking the gravel pit. By Act of 1872, c. 70, “any railroad corporation may purchase, or take and hold, as for public uses, land and the materials thereon; for borrow or gravel pits, for the construction and repair of its road, in the manner and under the restrictions provided in chapter fifty one, sections two and three, of the revised statutes.” To take and hold land under this Act the same proceedings must be had that are required to take and hold land for side tracks, &c. The objection made to the petition in this respect is that the description of the land to be taken is not sufficient. The description is as follows : “a certain gravel pit owned by said Frederic Spof-ford, and situated easterly of and adjoining their railroad track near where it crosses the county road near Smelt brook, so called, in Buclcsport village, and northerly of said county road, and.comprised within a space or limit of fifteen rods square.” We think this description sufficient. It embraces a piece of land fifteen rods
It is contended by the respondent, that this petition should not be granted, for the reason that the petitioner has been guilty of such laches as to deprive him of this remedy. It is said that the proceedings before the commissioners were closed in December, 1873, and that the petitioner had full knowledge of all the proceedings, and still he stood by and saw the respondent enter upon the land and expend large sums of money in erecting buildings and making side tracks, without interposing any objection till the filing of this petition, March 10, 1875, and that to quash these proceedings now, would work ruinous or very mischievous consequences to the corporation. But we must determine the case as presented in the record.
It is true that the adjudication by the railroad commissioners was in December, 1873 ; but the case finds that the certificate of the commissioners was not filed in the office of the clerk of the
Again, it is said that this petition is addressed to the discretion of the court; and the court, in the exercise of its discretion, is asked to dismiss the petition, though fatal defects may appear upon the face of the proceedings. True, the petition is addressed to the discretion of the court; but that discretion is a judicial discretion, to be exercised in accordance with the established rules of law; and, it appearing in this case that a substantial wrong has been done to the petitioner, that his estate has been taken without a compliance with the requirements of law, it is the manifest duty of the court to declare it, and to set aside the proceedings by which the wrong has been done.
Writ of certiorari to issue as prayed for.