Spofford v. Bucksport & B.R. Co.

• Decision Date: 04 August 1876
• Citation: 66 Me. 26
• Parties: FREDERIC SPOFFORD, petitioner for certiorari, v. BUCKSPORT & BANGOR RAILROAD COMPANY. 1875.
• Court: Maine Supreme Court

66 Me. 26

FREDERIC SPOFFORD, petitioner for certiorari, v. BUCKSPORT & BANGOR RAILROAD COMPANY.

1875.

Supreme Judicial Court of Maine.

August 4, 1876

ON REPORT.

PETITION FOR CERTIORARI as follows:

" Frederic Spofford, of Bucksport, in the county of Hancock and state of Maine, respectfully represents that the railroad commissioners of said state, under and by virtue of a written petition to them addressed by the Bucksport and Bangor railroad company, did undertake to set out, and did declare and determine, that a large tract of land owned and possessed by petitioner, consisting of eighteen acres or thereabouts, partly consisting of flats below high water mark, and partly of upland in said Bucksport, was necessary for the accommodation of said railroad, said parcel including a large and valuable wharf; and said railroad commissioners did act, and attempt to adjudge, in the premises, so as to condemn for the use of said railroad, and take from petitioner, this large tract of land, all which appears from the record of said petition and the doings of the said commissioners thereon, made by said commissioners, and in court to be produced or a copy thereof, and hereby made a part of this petition as if fully set forth herein.

And that said railroad commissioners had no lawful right or authority or jurisdiction in the premises, to determine and adjudge in the premises as they did, or attempted to do, and to deprive petitioner of his land, or the possession thereof or use of the same, and that their proceedings were wholly illegal, insufficient, and without jurisdiction, and void and ought to be quashed by due process of law, and for the reasons as are hereunto annexed and made a part of this petition.

Your petitioner prays this honorable court, to issue its writ of certiorari, directing said railroad commissioners to bring up and certify their said proceedings in full, including said petition, and their acts under it, said proceedings having taken place, and the records thereof, in the months of September, October and December, in the year of our Lord one thousand eight hundred and seventy-three, to the end that the same may be quashed and declared void by this honorable court, and for all suitable orders, decrees and judgments as may be necessary to fully quash and render nugatory and void the proceedings and determinations and acts of said railroad commissioners, in the premises aforesaid. Dated March 10 1875.

(Signed,) Frederic Spofford. "

The following is the petition of the respondents to the railroad commissioners:

Petition of B. & B. R. R. Co., to the Railroad Commissioners.

To the honorable board of railroad commissioners of the state of Maine.

" Respectfully represent the Bucksport and Bangor railroad company, a corporation duly established by law, that said corporation, and Frederic Spofford of Bucksport in the county of Hancock do not agree as to the necessity and extent of the real estate to be taken for side tracks and buildings for said road; and in order to determine the same, said railroad company request you, as provided in section three, chapter fifty-one of the revised statutes, to examine and determine how much, if any, of the real estate of Frederic Spofford, who is alone interested therein, hereinafter described, is necessary for the reasonable accommodation of the traffic and appropriate business of the corporation, to wit: beginning at the north-westerly corner of land of the Sherman steel company; thence, running north-easterly by the road leading from the county road, to the steel works, to said county road; thence, by the county road south-easterly, to the Kenny Snow lot, supposed to be owned by Mr. Ball; thence, southerly, easterly and northerly round said lot, to said county road; thence, south-easterly by said county road, to land of A. Colby; thence, by said Colby's land southerly, to the river; thence, westerly by the river, to the northeasterly corner of the Sherman steel company lot; and thence westerly or north-westerly by said lot, to the place of beginning.

Also, one other parcel in said Bucksport village, and which is situated between said county road and Penobscot river, and between the ferry way on the west, and land of Stephen Bennett on the east.

Said railroad company further represent that a certain gravel pit, owned by said Frederic Spofford, and situated easterly of and adjoining their railroad track near where it crosses the county road near Smelt brook, so called, in Bucksport village, and northerly of said county road, and comprised within a space or limit of fifteen rods square, is necessary for the construction and repair of its road; the parties not agreeing in regard thereto, said company, therefore, in order that it may take and hold the same, request you to view the same, and take such action in regard thereto as the law provides.

Said company further represent; that, in order to the convenient working of said road, it is necessary that it should have access to, and the certain use of, a certain spring of water situated, on land of said Spofford, in the rear of William Beazley's land, near said Smelt brook, in said Bucksport. Said company therefore request you to view the same, and assign to them such portion of said Spofford's land, lying between said railroad track and said spring, and so as to include said spring, as you may adjudge to be necessary for said road.

Dated at Bucksport, this 22d day of September, A. D. 1873.

By order of the directors of the Bucksport and Bangor railroad company.

Sewall B. Swazey, president."

The railroad commissioners ordered fourteen days personal notice on Frederic Spofford, and the service was proved.

The commissioners made the following report:

" Whereas, on the twenty-second day of September, A. D. 1873, the Bucksport & Bangor railroad company--a railroad corporation established by the laws of the state of Maine--made their application in writing to us, the undersigned railroad commissioners of said state, alleging in said application, that certain real estate, situate in Bucksport in the county of Hancock and state aforesaid, is necessary for the tracks, side tracks, depots, woodsheds, repair shops and car, engine and freight houses for said corporation, and setting forth therein a definite description of said real estate, and the name of Frederic Spofford of said Bucksport, as the owner and only party interested therein, and asking us, (as provided in section three, chapter fifty-one of the revised statutes,) to examine and determine how much, if any, of the said real estate, in said application described, is necessary for the reasonable accommodation of the traffic and appropriate business of said corporation, which application is hereto annexed, and made a part of this our certificate; and said Bucksport and Bangor railroad company, in their said application in writing, further represented to us, that a certain gravel pit is situate in said Bucksport, and owned by said Spofford; and in said application said company set forth a definite description of said gravel pit, and alleged that it is necessary for the construction and repair of their road; and asked us, the parties not agreeing in regard thereto, to view the same, and take such action in regard thereto as the law provides, in order to the company's taking and holding the same, for the purposes for which they averred it to be necessary to them; all of which appears in said application aforesaid, and is adopted also as a part of this, our certificate, with said application.

And whereas, on the twenty-fifth day of September, A. D. 1873, we made our order, directing due notice of the time and place of hearing on said application to be given to said Frederic Spofford, the only person interested therein, or in said real estate, or in said gravel pit, which order, hereto annexed, is made part of this, our certificate.

Now, we hereby certify that on the fifteenth day of October, A. D. 1873, we met at the hotel, called the ‘ Robinson House,’ in said town of Bucksport, at ten o'clock, A. M., being the same time and place appointed in our said order. Said ‘ Robinson House’ is near the premises named in said application; and at said time and place, so appointed by us, the president of the road, Sewall B. Swazey, esq., in behalf of said company, and Frederic Spofford, esq., for himself, appeared before us, and it was then proved to us that notice had been given as ordered, and in accordance with the statute in such case provided, and more than fourteen days before said fifteenth October, A. D. 1873. And at the same time, at said hearing, it further appeared, and was shown to us that the said railroad company and said Spofford did not then agree, and had not before agreed as to the necessity of said real estate, or of said gravel pit, being taken by said company for the purposes aforesaid, or as to the extent of either, necessary to be taken therefor. Said Spofford had been requested by said company to so agree, before their said application to us. And it further appeared by the evidence before us, that said Spofford did not then consent, and had at no time before consented, that said corporation might take and hold said real estate and said gravel pit for the purpose aforesaid, and did not then agree, and had not before agreed, upon the necessity and extent thereof, although applied to for that object by the said company before the said company made its application aforesaid to us.

We therefore, went upon the real estate and gravel pit aforesaid and viewed them and all the several premises in Bucksport named in said application, so far as was necessary to a just decision of all matters prayed for in said application of said company; and at said...