Old C. R. Co. v. Miller

• Decision Date: 28 June 1878
• Citation: 125 Mass. 1
• Parties: Old Colony Railroad Company v. Charles Miller
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 1

Old Colony Railroad Company v. Charles Miller

Supreme Court of Massachusetts

June 28, 1878

Argued January 23, 1877

Barnstable. Petition to the Superior Court, alleging that the petitioner was aggrieved by an award of the county commissioners allowing $ 875 as damages caused by the location and construction of the petitioner's railroad over the land of the respondent in Falmouth; and praying for a jury to assess such damages. Trial before Brigham, C. J., who allowed a bill of exceptions in substance as follows:

The location of the railroad crossed the respondent's farm cutting off between three and four acres of it, to which he had no access except by crossing the location. The railroad was constructed in the spring of 1872, and the petitioner then built a fence on each side of the location, put up bar-ways and put down planks between the rails of the track and there was no evidence that this did not afford the respondent a convenient means of crossing and recrossing the location between the portions of his farm thus separated. There was evidence tending to show that the respondent used this provision for crossing and recrossing, from the time it was so made continuously until the trial, as of right. The railroad location also crossed the respondent's cranberry bog, leaving about three acres of it above the location which, for purposes of cultivation, it was necessary should be flowed and drained from below the location, and which had no drainage or flowage except through the embankment.

At the time of the construction of the railroad, provision for such flowage and drainage was made by the petitioner by putting in a culvert on land immediately adjoining the petitioner's land, through the embankment, and cutting ditches along the upper side thereof, to conduct the water to such culvert.

There was also evidence tending to show that the respondent had used such provision, and had put in a dam across the upper end of the culvert on the location, to hold back the water, and thus flow the upper part of the bog, which dam was in use at the time of the trial; but, as to the sufficiency of this culvert for the purpose of draining the bog, the evidence was contradictory.

The petitioner requested the judge to instruct the jury that if they found that, when the petitioner constructed its road through the respondent's land, it made suitable provision for the respondent to cross and recross the location from one part of his farm to the other, or for the drainage and flowage of the upper portion of his cranberry bog, and he had accepted the same and used it, with the understanding between himself and the petitioner that he had a right so to do, they might consider that fact in estimating the damages caused by taking the respondent's land.

The judge declined to give this instruction; but instructed the jury that, no right of crossing the location, or of flowing or draining the upper portion of the cranberry bog through the location, being shown to have been reserved, and thus assured to the respondent, his right of crossing the location and of flowing and draining the upper part of the bog had been taken away from him, and damages must be assessed for such deprivation, irrespective of any temporary use by or advantage to the respondent from the culvert and crossing; and that the respondent was entitled to recover interest at the rate of six per cent. upon the damages found, from the time the petitioner entered upon the land by any act affecting the owner's use of it. This instruction in the matter of interest was excepted to by the petitioner as not covering a request for instructions by the petitioner, that the respondent's use of the culvert and crossing might be considered by the jury in reduction of interest and damages.

The jury assessed damages to the respondent in the sum of $ 3006.69; and the petitioner alleged exceptions, which were argued in January, 1877, and reargued in January, 1878.

Exceptions overruled.

G. Murston & J. H. Benton, Jr., for the petitioner.

T. M. Stetson, for the respondent.

OPINION

Colt, J.

The right of the landowner to damages for land taken by a railroad corporation is complete when the location is made. That act constitutes the taking. It is the loss occasioned by the exercise of the right of eminent domain at that time, for which the statutes provide indemnity. The amount is then due, and, if agreed upon by the parties, must be then paid. If not agreed on, the damages are assessed by a jury on the application of either party; but they are assessed as of the time of the location, and the jury may properly allow interest upon the amount ascertained as damages, for the detention of the money from the time of the taking. The damages are to be assessed in the manner, and upon the same proceedings, as is provided for the recovery of damages in the laying out of highways. Gen. Sts. c. 63, §§ 21, 22.

In the case of Parks v. Boston, 15 Pick. 198, 208 the jury, in a highway case, were told that the plaintiff was entitled to recover the value of the land at the time when it was taken, with interest from that time, subject to reasonable deduction for benefits to him caused by the widening; and Chief Justice Shaw declared that "it is not, strictly speaking, an action for damages; but rather a valuation or appraisement of an incumbrance created on the plaintiff's estate, for the use of the public. It is the purchase of a public easement, the consideration for which is settled by such appraisement only because the parties are unable to agree upon it. The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at the moment the purchase is made, when credit is not specially agreed on. And, if a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the...