67 Me. 358 | Me. | 1877
The question is, whether it is necessary that a mortagee, whose mortgage is recorded, not being in actual possession of the mortgaged premises, should have notice of the pendency of proceedings instituted by a railroad corporation before county commissioners to ascertain the damages of land owners for land taken for the track of its road.
We think a mortagee should be notified and made a party to the proceedings, and that the railroad company takes the risk of a want of notice if none is given. Practically, however, in many eases the necessity of notice is avoided; as where the mortgagee waives the damages, being satisfied with his security upon the land that is not taken ; or where the damages are awarded to the mortgager and are paid over to the mortgagee iipon his receipt or release therefor. And, we have no doubt, a mortgagee might resort to proceedings in chancery to recover the damages awarded to the mortgager. But the railroad corporation must see that the mortgagee is somehow paid or satisfied for the land taken ■ so far as covered by the mortgage.
The statute (R. 8., c. 51, § 2,) provides that “persons having any interest in land (taken for railroad) have the rights and remedies of owners to the extent of their interest.” Certainly, a mortgagee whose mortgage is recorded has an interest as an owner within the meaning of this section. The easement taken may despoil the mortgaged land of all its value. Without notice,
We find but few adjudications upon the exact question before us. In this state there are none. In New Hampshire (Parish v. Gilmanton, 11 N. H. 293,) it was held, not to be necessary to make a mortgagee a party in proceedings to lay out a highway over mortgaged land. But our theory of the character of a mortgage
In this case, at this lapse of time, this action is all the remedy the plaintiff can have; aud his claim for damages cannot be defeated. The taking the land was legal; the damages for such taking are recoverable in trespass. R. S., c. 51, § 6.
Defendants defaulted for $75 and interest thereon from July 1, 1870.