Thе defendants contend in support of their demurrer that the railway is lawfully located within the limits of the highway, and that although the plaintiff owns the fee to the center of the highway opposite his lot, the construction of the railway upon it was nоt the imposition of an additional burden, — the taking of a new easement, — and that the plaintiff is not entitled to damages. Thе plaintiff, on the other hand, contends that the railway is not lawfully in the highway; that although its location was properly granted, the defendants had no right under the law to appropriate and use the highway for railway purposes without first causing his dаmages as an abutter to be assessed and paid or tendered to him; and that because of their failure in this regard he is entitled in this action, or by some appropriate procedure, to have his damages ascertained and paid.
In 1895 the legislature enacted a general street railway law (Laws 1895, c. 27), in which it provided (s. 1) that “ street railway comрanies shall have the powers and privileges, and be subject to the duties, liabilities, restrictions, and provisions, contained in this chapter.” The defendants’ street railway was constructed under the provisions of this act. It is therefore neсessary to ascertain what steps the law required the defendants to take to lawfully occupy the highway with their railway. In section 5 of the railway law it is provided that “ all parts of street railways occupying any portion of a public highway or street shall be located thereon by the mayor and aldermen of cities or selectmen of towns in which sаid portions of said highways or streets may be. The board *83 ol mayor and aldermen of a city or tlie selectmen of a town, . . . upon petition of tbe directors of such railway corporation for a location of its tracks on or over any public highway, . . . shall give notice by publication to all parties interested of the time and place at which they will consider such petition for location in the public highways of said town or city; and after a public hearing оf all persons interested they may make an order granting the same, or any portion thereof, under such restrictions and upon such conditions as they may deem the interests of the public require ; and the location thus granted shall be deеmed to be the true location of the tracks of the railway. . . . The boards of mayor and aldermen of cities and selectmen of towns shall assess damages to abutters, subject to the right of appeal, in the same manner as now provided by law in the laying out of highways.”
The highway law referred to in section 5 requires the selectmen in towns arid the corresрonding municipal authority in cities to assess the damages sustained by owners of land taken for highways, to insert them in their return laying оut the way, and to cause their return to be recorded by the town clerk (P. S., c. 67, ss. 17, 18), and further provides that “no land . . . taken for a highway shall be appropriated or used for making the same until the damages assessed therefor are paid or tendered,” except in certain cases not necessary to be here mentioned. P. S., c. 71, *. 4.
It is apparent that seсtion 5, read in the light of the above provisions of the highway law, requires that a railway corporation, in applying fоr a location in a highway, should procure an assessment of the damages caused abutting owners; that an assessmеnt and payment or tender of the damages are conditions precedent to its right to occupy the highway for thе construction and operation of its railway; and that a failure to comply with these prerequisites, in the absence of a waiver by the abutters, renders its occupancy of the highway unlawful. Manchester & Keene R. R. v. Keene, 62 N. H. 81, 121, 122; Lyman's Bridge Co. v. Lebanon, 59 N. H. 196; Smart v. Railroad, 20 N. H. 233; Rossiter v. Russell, 18 N. H. 73. But these requirements may be waived by the abutter, as they are for his benefit. Manchester Keene R. R. v. Keene, supra, 121, 122; Uncanoonuck Road Co. v. Orr, 67 N. H. 541.
The plaintiff, as an abutter, had it in his power to prevent the appropriation and use of the highway by the defendants for railway purposes until his damages were assessed and paid or tendered, and it was his duty tо insist on his legal rights if he intended to claim that the defendants’ conduct was illegal. Instead of so doing, he stood by until long after thе railway was constructed and put in operation, without objecting, and does not now
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object to the defendants’ оccupancy of the highway, provided he can have the damages to which he may be entitled ascertainеd and paid to him. The assessment and prepayment of the plaintiff’s damages may therefore be properly considered as waived, and the defendants’ occupancy of the highway in front of his premises as lawful. Their occuрancy being lawful, and there being no claim that the railway was not constructed in a suitable and proper manner, the present action cannot be maintained.
Lebanon
v.
Olcott,
1 N. H. 339;
Troy
v.
Railroad,
23 N. H. 83;
Henniker
v.
Railroad
29 N. H. 146, 152;
Boston Belting Co.
v.
Boston,
While the plaintiff’s waiver of an assessment and prepayment of damages, and the defendants’ construction of their railway in a suitable manner under legislative authority, preclude him from treating them as tort-feasors, it does not deprive him of the right to an assessment and payment of such damages as he may be entitled to under the statute. Manchester & Keene R. R. v. Keene, supra. He can avail himself of this right by applying to the selectmen of Hooksett for an assessment. Thе right to apply is not restricted to the railway corporation. Lebanon v. Olcott, 1 N. H. 339, 340, 341, 342, 345.
Whether under the common law the railway would
(Craig
v.
Railroad,
Demurrer sustained.