Penobscot Log Driving Co. v. W. Branch Driving & Reservoir Dam Co.

• Decision Date: 11 January 1905
• Citation: 59 A. 593,99 Me. 452
• Parties: PENOBSCOT LOG DRIVING CO. v. WEST BRANCH DRIVING & RESERVOIR DAM CO.
• Court: Maine Supreme Court

59 A. 593

99 Me. 452

PENOBSCOT LOG DRIVING CO.

v. WEST BRANCH DRIVING & RESERVOIR DAM CO.

Supreme Judicial Court of Maine.

Jan. 11, 1905.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County, in Equity.

Bill by the Penobscot Log Driving Company against the West Branch Driving & Reservoir Dam Company. Prom an order appointing commissioners, defendant excepts. Exceptions overruled.

Petition by plaintiff company for the appointment of commissioners pursuant to provisions of chapter 174, p. 277, Priv. & Sp. Laws 1903, to determine the value of certain property alleged to have been owned by said company, and to have been taken by the defendant company by virtue of the right of eminent domain conferred on said defendant company by said act.

The defendant company seasonably filed its answer to the petition, and denied that it had taken certain of the property specifically enumerated, as alleged by the petitioner in its petition, and also denied that certain of the property alleged to have been taken is or was ever the property of the petitioner; and that inasmuch as the commissioners, under said act, were not authorized to determine the title to said property in dispute, and were not authorized to determine as to whether the same had or had not been taken by said defendant company under said act, but were only authorized to determine the value of such property belonging to said petitioner as had been taken by defendant company under the act, commissioners should not be appointed until the disputed questions of title and of the "taking" by the defendant company should first be legally determined, for which said reasons the defendant company moved that the prayer of the petitioner asking for the appointment of commissioners be denied.

In the court below, the motion to dismiss was overruled, and commissioners were appointed, and to this ruling the defendant company took exceptions.

Argued before WISWELL, C. J., and SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

P. H. Gillen and J. P. Gould, for plaintiff.

P. H. Appleton and Hugh R. Chaplin, for defendant.

POWERS, J. Exceptions by the defend ant to the appointment of commissioners under the defendant's charter (chapter 174, p. 277, of the Private and Special Laws of 1903), by the justice hearing the case.

The provisions of that act, so far as material to the question involved, are these: The right of eminent domain is conferred upon the defendant, to the extent that it may "take and hold all the dams, real estate, piers, booms, wing dams, side dams, and steamboats," except the dam at the outlet of Millinocket lake, owned by the plaintiff at the date of the approval of the act, March 23, 1903. The defendant may file in the registries of deeds in Penobscot and Piscataquis counties a written statement of its determination to exercise said power of eminent domain, "and thereupon said dams, real estate," etc., "shall be and become the property" of the defendant, together with certain powers, rights, and privileges of the plaintiff, which it is unnecessary to enumerate. The value of said dams, real estate, etc., "so taken shall be determined," in case the parties shall fail to agree, by a commission of three disinterested persons, to be appointed as follows: "Either of said corporations or any person interested, may file in the clerk's office of the Supreme Judicial Court in and for the county of Penobscot, either in term time or vacation, a petition to said court for the appointment of such commission, to consist of three disinterested persons, and upon such petition said court after such notice as said court may deem proper, shall appoint such commission. Such commission shall so soon as may be, but after reasonable notice, hear the parties, their proofs and arguments and determine the value of said dams, real estate," etc. The commission is to report to the court what, in its judgment, is a fair and just value of the dams, real estate, etc., which it is directed to appraise; and the court may confirm, reject, or recommit the report, or submit the subject-matter thereof to a new commission. All proceedings of the court in reference to any matter raising a question of law shall be subject to exceptions.

On April 28, 1903, the defendant filed in the registry of deeds a written statement of its determination to exercise said power of eminent domain. This writing contained no description of the property taken. Neither was it necessary that it should describe it, because its charter gave the defendant no election as to what it would take. It could elect to take or not to take, but, if it took any, it must, by the express terms of the act, take all the property owned by the plaintiff on March 12. 1903, of the various kinds enumerated in the act. It is evident that no attempted description which fell short of the entire property so owned by the plaintiff could bind the plaintiff. No more specific notice of the property taken could be required by the plaintiff for its information or protection, as the plaintiff might well be presumed to know what property it owned. The act itself fixed the extent of the taking, and the defendant could take neither more nor less than all the property of the kinds named in the act owned by the plaintiff at the date of its approval.

Thereafter, the parties failing to agree upon the value of the property so taken, the plaintiff duly filed in court its petition for the appointment of a commission for that purpose, annexing thereto a schedule of the property which it claimed the defendant had taken. Plainly, the plaintiff's enumeration of the property taken could not bind the defendant. It had a right to take all which the plaintiff owned at the date of the approval of the charter. It could be compelled to take no more. Accordingly, on the ground that they were not the plaintiff's property at the date of the approval of the charter, the defendant denied in its answer that it had taken certain items contained in the plaintiff's schedule, and claimed that it had taken one stone dam not therein named. Thereupon the justice hearing the cause appointed the commission, against the defendant's objection, who claimed that the commission was only authorized to determine the value of the property owned by the plaintiff and taken by the defendant, but had no power to pass upon questions involving the title of said property, or whether the same had or had not been taken by the defendant, and that its determination of those questions and all other questions of law that might arise relative to said subject-matter was necessarily preliminary to an appraisal.

The Legislature evidently intended that the plaintiff should have a speedy remedy to recover compensation for its property taken by the power of eminent domain. The property passed to the plaintiff by the recording, ipso facto, of its written statement of its determination. Either party or any person interested might file the petition asking for the appointment of a commission if the parties failed to agree as to the value of the property taken. After such notice as it deems proper, the court "shall appoint the commission," says the charter. The commission is to proceed "as soon as may be" to determine the value of...