Perkins v. Maine Cent. R. Co.

• Decision Date: 11 February 1881
• Parties: WILLIAM PERKINS, administrator of WILLIAM R. GAY, v. MAINE CENTRAL RAILROAD COMPANY. CHARLES GAY v. MAINE CENTRAL RAILROAD COMPANY.
• Court: Maine Supreme Court

72 Me. 95

WILLIAM PERKINS, administrator of WILLIAM R. GAY, v. MAINE CENTRAL RAILROAD COMPANY.

CHARLES GAY v. MAINE CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Maine.

February 11, 1881

ON REPORT.

Trespass. The law court to render such judgment in each case as the law and admissible evidence require

The opinion states the case.

H S. Webster, for the plaintiff, cited: Cushman v Smith, 34 Me. 247; Davis v. Russell, 47 Me 443; 1 Chitty Pl. 544; Burnham v. Ellis, 39 Me. 319; Franklin Bank v. Cooper, 39 Me. 542; Cook v Stearns, 11, Mass. 533; 1 Wash. R. P. c. 12 § 2, and cases cited.

G. C. Vose, for the defendant.

" Private rights, not under the shield of the organic law, must yield when they come in conflict with public necessity, or the general good. The maxim, salus populi suprema lex, has an important meaning in its application to private rights, and in limiting the absoluteness of any possible ownership of private property." 2 Dillon Mun. Corp. 552.

It is incident to the sovereignty of every civilized government that it may take private property, for public uses; of the necessity or expediency of which the government alone must judge. Cooper v. Williams, 4 Ham, (Ohio), 253; Perry v. Wilson, 7 Mass. 395; Boston Mill Dam v. Newman, 12 Pick. 467; Spring v. Russell, 7 Greenl. 273; 1 Baldwin 220; 1 U. S. Dig. 560.

This power of the legislature is limited only by the constitution, which in our State simply provides that private property shall not be taken for public uses without just compensation.

" If the organic law of the State does not prescribe the mode of procedure, in estimating land damages, for the use of a railroad company, or other public work, it is competent for the legislature to do so." Red. Railways, 2d ed. 139, 140. This our legislature did by the general railroad law of 1876.

The building of a railroad by a private corporation under authority of the legislature for the accommodation of the public, is a public use for which private property may be taken. Walton v. Warren et al. 25 Mo. 277.

The road was legally located, and by the location and subsequent acts the company, we contend, took a perpetual easement for the purposes authorized by their charter. The language of the statute clearly implies that the compensation is not a condition precedent to the right of taking actual possession of the land for the purposes authorized by the charter. Smith v. Holmes, 7 Barb. 426; Bloodgood v. M. & H. R. R. Co. 18 Wend. 17; Rogers v. Bradshaw, 20 Johns. 735: Davis v. Russell, 47 Me. 446.

Seth Gay was a resident of Gardiner and knew of the construction of the road over his land as it progressed. He suffered the company to proceed and expend large sums of money in constructing the road without interference or objection, and thus waived such claim, if any, as he might have had. Barre Turnpike Cor. v. Applet o n, 2 Pick. 430; Ipswich v. Essex, 10 Pick. 519; Merrill v. Berkshire, 11 Pick. 269.

Seth Gay or his executor might have sued and recovered all the damages which were sustained by the property (if any) whether at the time or in the future. This being so, the right of action was in him for the recovery of all damages, and this right of action would not pass to one who takes by purchase. Chicago & Alton R. R. v. Maher, 8 Law Reporter, 495; Ill. Central R. R. v. Grabill, 50 Ill. 241.

Twenty-five years have elapsed since the expiration of the three years within which an application for assessment of damages might have been made before the commencement of these actions. Forester v. Cumberland Vaelly R. R. 23 Penn. 371.

Judge Redfield in his work on railways, 2d edition, page 183, says, " when neither the general statutes nor the special act contain any specific limitation in regard to claims upon railway companies, for land damages, it is held that the general statute of limitations of actions, for claims of a similar character, will apply. One who is disseized can maintain trespass for no act subsequent to that which ousted him from the premises, until he re-enters." Taylor v. Townsend, 8 Mass. 415; Shephard v. Pratt, 15 Pick. 34; Starr v. Jackson, 11 Mass. 519; Brown v. Ware, 25 Me. 411.

The company have had possession in fact of this location since 1849, and this action cannot be maintained against one for acts done on premises of which he has been in possession more than six years. Bradford v. Cressey, 45 Me. 15; Abbott v. Abbott, 51 Me. 575; Allen v. Thayer, 17 Mass. 299.

The plaintiff, to maintain this action, must have possession in fact.

SYMONDS J.

The location of the Kennebec and Portland railroad across the land in controversy was filed in the office of the commissioners for Kennebec county on January 5, 1848. Seth Gay then owned the land, and till his death in March, 1851. Thomas Gay and Wm. R. Gay were the devisees of his real estate. Thomas Gay died in September, 1852, leaving his lands by will to William R. who thereby became sole owner of the locus in quo; and on his death, September 4, 1874, his will gave to Charles Gay a life estate therein.

The railroad was located within the time and substantially according to the description in the charter. It was in process of construction at this place in 1849, and was open for travel in the fall of 1851.

It is conceded that the defendant corporation for the purposes of this case may be regarded as representing the companies which preceded it in the occupation of the road, having succeeded by consolidation, and by lease, to all their rights and liabilities. The case presented, then, is as if the defendant company, having located its road over the premises in dispute in 1848, and built it 1849-1851, had maintained and used it from that time to the date of the writ, without payment of land damages; the land owners until these actions never having pursued any legal remedy to recover them.

It will be observed that the administrator of William R. Gay claims to recover damages for the trespasses alleged from August 25, 1870, to September 4, 1874; that is to say, for that part of the period of six years, immediately preceding the date of the writ, during which his intestate, the sole owner, was living. Charles Gay, to whom a life estate came on the death of William R. claims to recover the damages for trespasses, occurring from the death of William R. to the date of the writ; the trespasses in both instances being alleged as continuing during the whole periods stated. The two actions are included in one report.

The plaintiffs are, or represent, the land owners. Their lands have been taken, or at least the defendants have assumed to take and use them, for public purposes. No compensation has been made. Are the plaintiffs in position to invoke the constitutional guaranty, or have rights been lost by the extraordinary delay in resorting to legal remedy?

It is undoubtedly true that " where a constitutional provision is designed solely for the protection of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will."

" The right to compensation, when property is appropriated by the public, may always be waived; and a failure to apply for and have the compensation assessed, when reasonable time and opportunity and a proper tribunal are afforded for the purpose, may well be considered a waiver." Cooley's Const. Lim. 181, 562, and cases.

" When neither the general statutes nor the special act contain any specific limitation in regard to claims upon railway companies for land damages, it is held that the general statute of limitations of actions for claims of a similar character will apply." 1 Redf. Rail. 351.

The general limitation for actions of trespasses on...