Low v. Concord R. R.

• Decision Date: 12 March 1886
• Citation: 63 N.H. 557,3 A. 739
• Parties: LOW v. CONCORD R. R.
• Court: New Hampshire Supreme Court

3 A. 739

63 N.H. 557

LOW

v. CONCORD R. R.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 12, 1886.

Appeal by the plaintiff, filed May 17, 1882, under Gen. Laws, c. 160, §§ 17-22, 29, from an assessment of damages for land of the plaintiff taken for railroad depot purposes. The sum assessed was tendered to the plaintiff by the defendants before they entered upon the land, and before he took this appeal; and he refused to accept it. May 17, 1882, the defendants paid the same sum to the state treasurer, and filed in his office reasonable security for the payment of any further damages and costs which might be awarded on the appeal, as required by section 22. June 8, 1882, the plaintiff received the money from the state treasurer, and gave him a receipt containing this clause: "Hereby expressly claiming that the same is in part payment only of the damages, and reserving all rights of appeal, and without prejudice to my appeal already taken, and waiving no rights." The defendants claimed that this receipt was a waiver of his appeal, and seasonably moved to dismiss. The court denied the motion, and the defendants excepted. The defendants also excepted to instructions given to the jury.

Chase & Streeter, for defendant.

S. C. Eastman, for plaintiff.

CLARK, J. The exercise of the power of eminent domain for railroad uses was not authorized by the Revised Statutes. "No railroad corporation shall take any land, for the use of such corporation, without the consent of the owner thereof." Rev. St. c. 142, § 1. By the act of December 27, 1844, (Laws 1844, c. 128,) railroads were declared to be publie corporations in certain cases, and a board of railroad commissioners established authorized to lay out railroads on petition, and, in conjunction with the road commissioners for the county, to assess the damages to the land-owners; and the same right of appeal was secured to the land-owners as was provided in section 8 of chapter 51 of the Revised Statutes, which was:

"If any such owner shall be dissatisfied with the amount of damages awarded him by the commissioners, * * * he may appeal to the court of common pleas next to be holden in the county, and not afterwards, and thereupon said court shall assess his damages by a jury; and, if he recovers a greater sum than that allowed by the commissioners, he shall have full costs against the town; if an equal or less sum, he shall pay costs."

It was also provided that the damages should be paid to the landowner only in case of entry to construct the road, and that no land should be entered upon until the damages assessed were paid or tendered as required in case of highways made by towns. Under this statute the corporation had no right of appeal, and it must pay or tender the amount of damages assessed before entering to construct its road.

By the act of July 3, 1845, it was provided "that, in case an appeal shall be taken from the decision of the commissioners, the corporation may, on giving or tendering to the land-owner security, to the satisfaction of the road commissioners for the county, that they will pay such damages and costs as may be adjudged against them in such appeal, immediately enter on the land to construct a railroad." Laws 1845, c. 227, § 4. This statute seems intended to allow security as a substitute for payment or tender of damages. July 10, 1846, it was enacted (Laws 1846, c. 335) that in case additional land should be needed for the construction of bridges or gates at highway crossings, upon certain proceedings had the corporation should have authority to take the same, "after making previous payment or tender of the damages" assessed by the road commissioners. It was also provided that "any owner of land or any railroad corporation dissatisfied with the damages assessed in any of the cases aforesaid shall have the right to have the same assessed by a jury, as provided in the eighth section of chapter fifty-one of the Revised Statutes." Under this act both parties had the right of appeal, but there was no provision for giving security, or allowing the land to be taken until after paying or tendering the damages. Thus the statute remained until the Revision of 1867. The only instance in which an appeal from the assessment of land damages was given to a railroad corporation was when additional land was required for the construction of a bridge, or gates at a highway crossing; and in that case the corporation could not enter upon and take the land until the damages were paid or tendered to the owner. In the case of laying out and building a new railroad the corporation had no right to appeal from the assessment of damages; but in the event of an appeal by the land-owner, the corporation, upon giving security to pay the damages and costs that might be adjudged against it in the appeal, could enter and construct its road.

In the Revision of 1867 material changes were made. Railroads were declared to be public highways, and the trustees and others in whom any railroad is vested, public agents, so far as the security and protection of the public rights and interests are concerned. Gen. St. c. 146, §§ 1-3, 5. In case the grantees of a railroad are unable to obtain deeds of the right of way, they may appeal to the railroad commissioners for an appraisal of the damages to the land-owner, and their report is final unless either party aggrieved appeals therefrom; in which case the same proceedings are had as on an appeal from an award of damages by the county commissioners. Gen. St. c. 146, §§10, 17. "Damages awarded to any land-owner shall be paid or tendered to him, if known and resident in the state, before the proprietors shall enter on his land to make their road, except by his consent. If the owner or his residence is unknown, or if he is a minor and has no guardian, or is not resident in the state, the damages awarded shall be paid to the state treasurer, for his use, before the land can be rightfully entered upon. If an appeal is taken from the award of damages, the proprietors may enter upon and use the land, upon payment of the damages awarded to the owner, or, on his refusal of the same, to the state treasurer, and filing in his office reasonable security, to the satisfaction of either of the county commissioners, for the payment of any further damages and costs which may be awarded to the land-owner upon said appeal. No action shall be brought for damages before entry upon the land; and if the location of the road shall be changed before the land is entered upon for the purpose of building the road, no damages shall be paid." Gen. St. c. 146, §§ 20-23. No change has been made since the General Statutes. The corresponding sections of chapter 160 of the General Laws are identical with the foregoing sections of chapter 146 of the General Statutes.

The appraisal of damages for land taken for a railroad is similar to the assessment of damages for land taken for a highway, and the mode of procedure on appeal is the same. But in the...