Town of Lebanon v. Olcott

1 N.H. 339 | Superior Court of New Hampshire | 1818

The opinion of the court was delivered by

Richardson, C. J.

When the legislature authorizes an act, which in its natural consequences may be injurious to the property of another, and at the same time prescribes the particular mode in which the damages resulting from the act shall be ascertained and compensated, it is clear that he who does the act: cannot be liable as a wrong doer. The truth of this proposition is not denied by the plaintiff’s, counsel; but he contends that ; the damages which the plaintiffs have sustained resulted from an act of the defendant not authorized by the legislature. It is said that the company were clearly restrained from overflowing the road in question, by the sixth section of the act of incorporation, which expressly declares that “ the road leading by the falls” shall be in no wise obstructed by the company ; and it is agreed that the highway overflowed in this case: is a part of the. highway leading by the falls. This argument is certainly entitled to a very serious consideration, and must in our opinion prevail, if the overflowing in question is to be considered as art obstruction within the meaning of the act.

But in ascertaining the meaning of a charter of this description, all the parts of it ought to be taken together, and be so contrued, if possible, as to make them consistent one with another. Such a construction ought also to be adopted that no part of the charter may be inoperative — in a particular manner that the object of the grant, may not be defeated. And in this case it is to be presumed that the charter was granted with a full knowledge of the situation of the place where the dams and locks were to be made, and of the situation of the lauds and roads in the vicinity, and that its provisions were intended to be adapted to the situation and circumstances of the place. In giving a construction, therefore, to the charter, the situation and circumstances of the place ought to be taken into consideration. It is very clear that this construction of the plaintiffs not only renders the sixth section of the charter inconsistent with other parts of it, but mpSt in effect defeat the object of the charter altogether ; for it is agreed that a dam sufficient to answer the purpose intended by the act could not have been built without causing the overflowing in question. This construction ought not then to be adopted, if the whole act taken together admits of an interpretation that will render all parts of it consistent and inoperative, without in any wise defeating the object which the legislature must have had in view in the sixth .section p and we are of opinion that it does admit of such an interpretation. The object of the sixth section of the act is very apparent. The charter gives to the company the exclusive privilege of locking the falls, and authorizes them to receive toll of those who may pass the locks. But it was not intended to give them the exclusive privilege of transporting all goods by the falls, but to leave it at the election of those who might have occasion to pass the falls with goods, to go through the locks with them, or transport them round the falls by land, as formerly. This section was therefore introduced to secure that election to those who might have occasion to use the river for the transportation of goods, by restraining the company from obstructing the old highway round the falls. It is equally clear that it was not the intention of the legislature that the company should obstruct any highway whatever by overflowing it. This is evident from the provision of the charter which makes the company liable to towns for all damages they may sustain by having their roads overflowed. The only damages a town as such can sustain in such a case must arise from its being compelled to repair the road and make it passable. The charter does not, then, by implication exonerate towns from their liability to beep the roads overflowed in repair. But they are still bound to make them passable wherever they may be overflowed, and are to look to the company for the reimbursement oh the expense. - ■

The overflowing of the road in question must, therefore, be considered only as a temporary obstruction, which could not be avoided in accomplishing the object of the charter, and which has been entirely removed by an alteration in the road, so that the passage round the falls is as convenient as before. As the legislature must, in our opinion, be presumed to have been aware that this road would be over-flowed, and have provided the means by which any obstruction arising from such overflowing might be removed at the expense of the company, we think this is not to be viewed as an obstruction within the- meaning of the sixth section of the charter, which was introduced only for the purpose of preventing unnecessary and permanent obstructions of the roads round the falls. This construction is absolutely necessary to make that section consistent with other provisions in the charter, and seems to us to be warranted by the best rales of interpretation. ' We are, therefore, of opinion that this objection to the defence in this case cannot prevail.

It is also contended by the plaimiffs, that the company had no right under the charter to construct dams uutil the damages which might result from them in overflowing lands and roads were ‘first ascertained and paid. But in oitr opinion this construction is equally against the interest of the individuals and towns whose lands and roads are liable to be overflowed, and that of the company : nor is it by any means warranted by the language of the charter. The act provides that in case the company shall find it necessary to use the lands of private persons, such lands shall be set off and the damages appraised in a particular manner; and that the company shall not take possession of the land until they have paid or tendered the damages so assessed. By this provision the company were enabled to acquire a title to lands set off by metes and bounds, the real value of which could be easily ascertained ; and there would be no inconvenience in withholding the title from the company, until the value of the lands was paid or tendered. But as to consequential damages to be done to individuals and towns by constructing dams upon the falls, the case was very different. Until it was ascertained by experiment to what extent it would be necessary to erect dams, to accomplish, the object, and to what extent such dams would cause the water to overflow roads and lands, there could have been no certain data by which such damages could have been ascertained. Any opinion of the selectmen on the subject must have been at best only vague and uncertain conjecture, equally unsafe to all parties as a ground of decision. The provision of the charter, therefore, relative to the payment of the damages previous to the taking of possession of lands set off to the company, is not, in the nature of things, applicable to the case of consequential damages. The charter provides that the damages shall be ascertained in the same manner, that is, by selectmen, in both cases ; but neither the letter nor spirit of the act wilt warrant us in applying the other provisions relative to land to the case of damages resulting consequentially from the construction of dams. We are, therefore, of opinion that this objection of the plaintiffs is not well founded.

The plaintiffs also contend that the charter provides no method to compel the company to pay the damages, when assessed in a case of this kind ; and that, therefore, unless they can sustain an action at common law, they are without remedy. This is undoubtedly true. But the answer to this objection is, that the plaintiffs may maintain an action at common law against the company to enforce the payment of the damages found by- the selectmen, but not an action of trespass on the case against this defendant. What he has (jone was warranted by an act of the legislature, and is not to be viewed as a tort. Bat the determination of the selectmen creates a debt, the payment of which may be enforced in an action of debt at common law^(2.)

It is the opinion of the court that there must be

Judgment for the defendant.

(2.) ) 7 Mass. R. 202, Bigelow vs. Cam. & Con. Turnp. Corporation.