Schoff v. Upper Connecticut River & Lake Improvement Co.
| Decision Date | 22 March 1876 |
| Parties | Schoff v. The Upper Connecticut River And Lake Improvement Company. |
| Court | New Hampshire Supreme Court |
Flowage---Damages---Trial of title by jury---Practice.
The defendants were authorized by their charter to erect dams to facilitate the rafting of logs, and for other purposes within certain limits in the county of Co”s; and it was provided, that any owner of property damaged thereby might apply to the supreme court of the judicial district of said county in which such property may be situated for the assessment of such damages. A petition filed by virtue of said statute should show (1) in which district of Co”s county the property alleged to be damaged is situated; (2) that the property is situated within the chartered limits of the corporation; (3) that the petitioner owns the property alleged to be damaged, or has some title or interest therein (4) that the property of the petitioner has been damaged by some act which the defendants were authorized by their charter to do; (5) and the property should be described with such certainty that it may be identified.
The defendants may plead in bar of the plaintiff's title, and when issue as to such title has been joined, such issue will not ordinarily be tried by a jury till the matter of title as well as of damages has been heard by a committee
PETITION setting forth that, by an act of the legislature of this state, approved July 1, 1863, James M. Hilliard and others were made a body corporate by the name of the Upper Connecticut River and Lake Improvement Company, with the right to erect and maintain across said river and upon said lake such dams, piers, and other arrangements for holding and distributing water as might facilitate the rafting, driving, and securing lumber upon said river and lake; that said company, under and by virtue of said charter, have built and maintained, and still do maintain, a dam across the outlet of said lake, and by means of said dam have raised the water in said lake to a great height, to wit, to the height of twenty feet, and have by means thereof caused the water of said lake to overflow its banks, and to overflow and submerge the land of the plaintiff, and do great damage to her timber and fences, and spoil her fences and fields, and do other great damage to her premises. The petitioner then asks that the defendants may be cited in to answer; that the court shall cause said matters and claim for damages to be tried and estimated by three disinterested freeholders, and reported by said committee to said court, and for such other relief as may be just.
The defendants appeared, and moved to dismiss the petition; which motion the court denied, and the defendants excepted. They then moved for leave to file a plea in bar, alleging that at the date of the filing of her said petition she was not the owner of the land and property in said petition described. The court denied this motion, and the defendants excepted.
The questions of law arising upon the foregoing case were transferred to this court by STANLEY, J., C. C.
Aldrich & Parsons and G. A. Bingham, for the defendants. Dudley, for the plaintiff
By ch. 2805 of the Pamphlet Laws, approved July 1, 1863, the defendants were made a corporation, with power to remove boulders, rocks, and other obstructions from, and enlarge the channel of, Connecticut river and lake, and to erect and maintain dams, piers, and booms to facilitate rafting, driving, floating, and securing lumber upon said river and lake anywhere within the chartered limits mentioned in the act, which were defined to extend from the inlet of the first Connecticut lake in Pittsburg, to a point opposite Smith's factory
in Stewartstown. Said corporation was also anthorized to include within its powers and privileges the small tributaries within the limits aforesaid, emptying into said river, known as Hall's stream, Indian stream, and Perry's stream. By an amendment passed in 1867 (ch. 64, acts of 1867), the limits were extended down the river to "Fifteenmile Falls," so called.
By ch. 170 of the Pamphlet Laws, approved June 26, 1874, the owner of any property, situated within the chartered limits of the defendants, who shall feel that his property is damaged by any improvement made or act done by virtue of the second section of the defendants' charter, may apply by petition to the supreme court of the judicial district of the county of Co”s, in which said property is situated, and the court, after citing the defendants to answer to the same, shall cause said matters and claims for damages, as well past as prospective, to be tried and estimated by a committee of three disinterested freeholders of the county, whose report being made to the court, and judgment being rendered thereon, the same shall be final and conclusive between the parties. Either party dissatisfied with the report of the committee may apply for a trial by jury, which shall be granted, and judgment rendered upon the verdict shall be final.
The plaintiff has filed her petition in the circuit court for the northern district of this county, under the provisions of the last named act, and which the defendants have moved to dismiss. The reasons upon which this motion was grounded do not appear from the case as transferred. In the argument, however, several reasons are set forth, which we will proceed to consider.
1. "Because it is not shown by the description, nor alleged, that the property is situated in the district where the petition is pending."
It has been held that inasmuch as the jurisdiction of the court over petitions for the laying out of highways is limited and special, depending upon the particular exigencies described in the statute, the established rules of pleading require that the petition to the court should contain a statement of all the facts necessary to give jurisdiction to the court; and if it fails to do so, the proceedings may be suppressed at any stage. Huntress v. Effingham, 17 N.H. 584. As this petition contains no statement that the property alleged to be damaged is situated in the northern district, the petition is defective in this respect, but may be amended upon leave being obtained in the circuit court.
2. It is also objected that "the right to petition is only given to owners of property situated within the chartered limits of the defendants, and it is not shown by description, nor alleged, that the property is so situated."
An inspection of the defendants' charter, as granted in 1863 and amended in 1867, shows that the chartered limits do not extend beyond the limits of the county. But the limits, also, are not co‰xtensive with the limits of the county. If the petition is amended so as to show that the property is situated within the northern district, it would not necessarily follow that it is situated within the chartered limits
of the corporation. The further fact should therefore appear in the petition, that the plaintiff's property is within the company's limits.
3. "Because this remedy is given only to the 'owner' of property, and it is not alleged (unless 'submerge the land of the plaintiff,' &c., is equivalent to such allegation) that the petitioner is the owner of the property described."
The allegation in the petition is, that the defendants have caused the water "to overflow and submerge the land of the plaintiff, and do great damage to her timber and fences and spoil her fences and fields, and do other great damage to her premises." Alleging "that land of the plaintiff" was overflowed, can certainly mean nothing less than that the plaintiff owned certain land which the defendants flowed. There is no doubt that the term "owner," as used in the statute, is broad enough to cover any interest which the plaintiff may have in land damaged by acts of the defendants, whether a fee, or an estate less than a fee. Because the statute gives a remedy to the "owner of property," it does not follow that it is necessary he should allege in the petition that he is "owner" of the property which he claims has been damaged. Any words of equivalent meaning must undoubtedly answer as well. Whatever estate the plaintiff may have in these premises, whether an estate in fee, or in reversion or remainder, or for years or for life, she is...
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