70 A. 290 | N.H. | 1908
1. The question raised by the defendants' first exception is whether it was permissible in any view of the facts to compute interest on the verdict from February 7, 1903, that being the date upon which the defendants flowed the plaintiff's land. In answering this question it will be necessary to consider the nature of this proceeding. Two views have been presented: one that it is an action to assess the damages the plaintiff has sustained because of the defendants' illegal acts, and the other that it is to ascertain the value of the flowage rights the defendants wish to acquire in the plaintiff's land. It is manifest that the latter view is the correct one, for otherwise it would not be an answer for the defendants to disclaim an intention of acquiring any rights in the land. It is well settled that a petition of this nature will be dismissed where a millowner files a disclaimer, and that the landowner will thereupon be remitted to an action at law to recover the damages he has sustained by reason of the millowner's acts in flowing his land. Gordon v. Paper Co.,
Inasmuch as the purpose of the proceeding is to ascertain the value of the flowage rights the defendants wish to acquire, and not to assess the damages the plaintiff has sustained by reason of the defendants' illegal acts, it would seem that the question whether the court erred in computing interest on the verdict from the time the land was in fact flowed would be solved by ascertaining whether on that date (February 7, 1903) the defendants knew or should have known that their dam would overflow the plaintiff's land, and intended to acquire flowage rights by condemnation proceedings. If they did, it was their duty to then pay her for the rights they wish to acquire. For their failure to do so, interest is given as damages for the unlawful detention of money. Chauncy v. Yeaton,
The plaintiff's land is on the Pemigewasset river above the defendants' dam and is flowed thereby. The defendants knew or ought to have known that, as a direct consequence of their acts, her land would be flowed to the extend that it was below the level of the water as raised by the dam. If the dam was a public benefit, and the defendants intended to condemn the land when the dam was built and the land was flowed, they acquired the right to take it under the statute. Lebanon v. Olcott,
2. The question whether section 2, chapter 50, Laws 1893, repeals the provisions of chapter 142, Public Statutes, relative to adding fifty per cent to the value of the easement which a millowner acquires when land is flowed under the provisions of the latter chapter, was considered in Concord etc. Co. v. Clough,
The Clough case was finally disposed of on another ground, and there is nothing in the record to show why this part of the opinion was not reported. But whatever the reason may have been, it is clear, when the purpose of chapter 50, Laws 1893, is considered, that the legislature did not intend by section 2 of that act to repeal section 17, chapter 142, Public Statutes, adding fifty per cent to the verdict. The manifest purpose of section 1 of the act of 1893 is to make it certain that the landowner shall recover all the damages he sustains, both direct and indirect; and all that section 2 repeals is so much of chapter 142, Public Statutes, as is inconsistent with this purpose. It cannot be found, therefore, that the provision of chapter 142 adding fifty per cent to the verdict is repealed by section 2 of the act of 1893, unless it is inconsistent with an intent to enable landowners whose land is overflowed to recover all the damages they sustain by reason thereof.
It is clear that the fifty per cent provision of chapter 142, Public Statutes, instead of being in conflict with section 1, chapter 50, Laws 1893, tends to promote the purpose of that chapter, and that the intent of both is to make it certain that those whose lands are taken under the provisions of the flowage act shall recover all the damages they sustain because of such taking. The act of 1893 repeals those provisions of the earlier statute, and those only, which are inconsistent with the legislative intent that parties whose lands are taken under the flowage act shall receive full compensation for all the loss they sustain, whether the flowing is the direct or the indirect cause of the damage.
3. The measure of the plaintiff's damages is the difference between the value of her farm after the defendants had flowed it and what it would have been worth on that date if their dam had not been built. It was competent, therefore, for the jury to consider all the consequences which would probably result from flowing *7 the plaintiff's land, if the defendants used ordinary care to do no unnecessary damage which would have any tendency to reduce the value of the farm. One of the probable consequences of flowing the land was that the vegetable matter in the soil would decay and produce disagreeable odors whenever the water receded. The land was near the plaintiff's dwelling-house, and it is common knowledge that such odors would make the house less desirable for human habitation, and consequently less valuable. The odor, therefore, was something the jury should consider in ascertaining the value of the flowage rights the defendants wished to acquire.
Exceptions overruled.
WALKER and BINGHAM, JJ., dissented on the second question: the others concurred.
