Bowden v. York Shore Water Co.
| Citation | 95 A. 779 |
| Parties | BOWDEN v. YORK SHORE WATER CO. |
| Decision Date | 22 November 1915 |
| Court | Supreme Judicial Court of Maine (US) |
Report from Supreme Judicial Court, York County, in Equity.
Suit by Samuel M. Bowden against the York Shore Water Company, for injunction to stay condemnation proceedings. Heard on report. Bill sustained, and writ directed.
Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, HANSON, and PHILBROOK, JJ.
E. P. Spinney, of North Berwick, for complainant. Leroy Haley, of Biddeford, and Ralph W. Hawkes, of York Village, for respondent.
SAVAGE, C. J. Bill in equity, praying for an injunction to stay condemnation proceedings by which the defendant is attempting to take the plaintiff's land by an exercise of the power of eminent domain. The case comes up on report.
For these purposes, the corporation is authorized by its charter (Private and Special Laws of 1911, c. 256)—
"to take, hold, protect and use the water of Chase's pond in said town of York, and of all other ponds and streams tributary thereto or running therefrom," and to "take and hold, by purchase or otherwise, any lands or other real estate necessary for any of the purposes aforesaid, and for the protection of its water mains and pipes and the watershed of said Chase's pond."
The defendant takes its water from Chase's pond, which is 1 1/3 miles long, and it has acquired the ownership of some land within its watershed. The plaintiff owns a heavily timbered tract of land lying 1 1/5 miles easterly from Chase's pond. The tract contains 104 acres. The deed to the plaintiff bears date March 8, 1913, and was executed on that day. But it was not delivered to the plaintiff until March 17th. In the meantime, on March 12th, the defendant filed in the office of the county commissioners, in accordance with statute (R. S. c. 56, § 11) a notice of taking the land with plan and description of the same. It is alleged in the bill and admitted by the answer that in the notice the defendant stated that "it finds it necessary for its purposes and uses in the protection of the water of Chase's pond in said town of York to take certain land within said town of York; and, being duly authorized by law to take such land whenever it is necessary for its purposes and uses, therefore said York Shore Water Company has taken, and does hereby take" certain described land, which is the land in question. The filing of the notice was a taking of the land for the purpose described therein. Penobscot Log Driving Co. v. West Branch D. & R. D. Co., 99 Me. 452, 59 Atl. 593.
The plaintiff contends that the taking was not a constitutional exercise of the power of eminent domain, and hence that it was invalid and void. But before discussing this question, we must first consider one of the points in defense, namely, that the plaintiff was not owner of the land at the time of the taking, and therefore has no such interest as entitles him to maintain this bill. We do not think the point is tenable. It is true the plaintiff did not obtain title until after the taking. It appears that both the plaintiff and the defendant had been negotiating with the then owners for the purchase of the land. The plaintiff offered a little more than the defendant, and a deed to him was made and executed March 8th. But it was left with the cashier of a bank to be delivered to the plaintiff, when it should be ascertained that his check on another bank was good. It was not actually delivered to the plaintiff until March 17th, five days after the taking by defendant.
If the taking by the defendant was valid, and if, thereby, an absolute fee was vested in the defendant, its present contention might be sound. Whether an eminent domain taking vests an absolute fee is a question concerning which the courts are not in entire accord. In some cases the character of the use seems to be the determining factor; in others, the provisions of the statute under which the taking is made. In some statutes it is expressly provided that the fee shall vest in the taker; in others, provision is made merely for taking and holding for specified public uses. The charter of this defendant is of the latter class. The greater weight of authority, we think, sustains the proposition that unless a legislative intent is discoverable an absolute fee shall vest, the taker takes only an easement, or, at most, a qualified, conditional, and determinable fee. And in such case, if the use be abandoned, the entire title is revested in the owner. See, for various views, Harback v. Boston, 10 Cush. (Mass.) 295; Dingley v. Boston, 100 Mass. 544; Page v. O'Toole, 144 Mass. 303, 10 N. EL 851; Conklin v. Old Colony R. Co., 154 Mass. 155, 28 N. E. 143; Troy & B. R. Co. v. Potter, 42 Vt. 205, 1 Am. Rep. 325; People v. Blake, 19 Cal. 579; Lockie v. Mutual Union Telegraph Co., 103 Ill. 401; Harris v. Chicago, 162 Ill. 288, 44 N. E 437; Hagaman v. Moore, 84 Ind. 496; Shawnee County Com'rs v. Beckwith, 10 Kan. 603; Fairchild v. St. Paul, 46 Minn. 540, 49 N. W. 325; 1 Lewis on Eminent Domain, 188. It is unnecessary in this case, however, to determine the precise character of the interest in the land, which remained in the owner if the proceedings were valid, and which came to the plaintiff by deed from the owner. If it shall be found that the condemnation proceedings were valid, he cannot, on the facts, maintain his bill. On the other hand, if the proceedings were invalid, he owns the entire interest in the land, and may have unauthorized and unlawful attempts to take it restrained. The contention of the defendant begs the question. It assumes that the taking was valid. Whether it was is the precise question in issue. In this respect it is immaterial whether the plaintiff took title before, or after, March 12th. He now has such an interest as enables him to try his rights.
The defendant relies upon the rule stated in Hayford v. Bangor, 103 Me. 434, 69 Atl. 688, that only the owner at the time of taking can complain. But that case was not like this one. That was an appeal from assessment of damages on account of an eminent domain taking. And it was properly held that, as the damages occasioned by an eminent domain taking belong to whoever is owner at the time of taking, so no one can be aggrieved by the assessment except that owner. This case is not one of damages. This plaintiff would have no standing in a hearing on that question. But he has a standing in a proceeding to determine his rights in the land itself, and to prevent an encroachment upon the same.
Recurring now to the main proposition, we think the discussion will be clearer, of we describe the situation of the land with reference to Chase's pond, and the contour of the land between them. As already stated, the land is 1 1/5 miles from the pond. Between the land and the pond are two ridges running northerly and southerly in the same general direction as the pond extends. The westerly ridge forms the crest of the watershed of the pond. From that ridge to the plaintiff's land the distance is nearly 1 mile. Between the ridges is a valley. The ridges are higher, and the valley is lower, than the pond. Through the valley flow three brooks, which ultimately empty into Cape Weddick stream, which has its source at the outlet of Chase's pond. By no possibility can water from the plaintiff's land flow into the pond. So much of the watershed of the pond as lies between the pond and the lot in question is only a few hundred feet in width, and it is not shown that it supplies any water to the pond, except surface water. The land in question lies on the easterly slope of the easterly ridge, and drains into a brook, which rising in a swamp on the lot, is dry in dry seasons of the year, and, when it has any water, empties into Cape Weddick stream. This brook not running from Chase's pond, and not tributary to it, is not within the scope of the defendant's charter as a source of supply. And if it was, it could not be made practically useful. Between the lot in question and the pond there is some land that is covered with timber, some open land which is being, or has been, used for tillage or pasturing, and some area that has been stripped of timber in recent years, with the slash in varying degrees of decay lying on the ground. The defendant owns timber land adjoining plaintiff's lot on the west, and towards the pond, but not within its watershed. It also owns a tract near the foot of the pond, and another near the head. The latter is within the watershed. It has negotiated for other tracts of timber land situated, as we understand the testimony, in the valley between the ridges, and...
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