Portland & R. R. R v. Inhabitants of Deering

• Decision Date: 22 December 1885
• Citation: 78 Me. 61,2 A. 670
• Parties: PORTLAND & R. R. R v. INHABITANTS OF DEERING.
• Court: Maine Supreme Court

2 A. 670

78 Me. 61

PORTLAND & R. R. R

v. INHABITANTS OF DEERING.¹

SUPREME COURT OF MAINE.

Filed December 22, 1885.

William L. Putnam, for plaintiff.

N. & H. B. Cleaves, for defendant.

PETERS, C. J. The town of Deering laid out two of its new ways over the track of a railroad company, and the question before a sheriff's jury was as to the damages sustained by the company for the easements taken. The commissioner, presiding at the hearing, instructed the jury that they were simply to estimate the natural and the actual direct damages sustained by reason of the crossings, regard being had to the use which the crossings were put to, namely, town ways; but that, in estimating such damages, they should not consider the mere probable use in the future to which the land taken might be put by the railroad.

We think the latter branch of the instruction was erroneous. It too closely qualifies or construes the general rule. The jury, in order to decide what the damages were, should have been allowed to take into consideration, not only the use which the railroad was then making of their land, but the use which, in all probability, it would thereafter make of it. The error, no doubt, occurred from the commissioner's having another principle in mind, which he was endeavoring to inculcate correctly to the jury, and that is, that prospective and speculative damages are not recoverable. But a distinction is to be observed between what land may be worth in the future, and what it is now worth in view of the future; and, as no man can foresee the future with any certainty, we are allowed to base calculations to some extent on the reasonable probabilities of the future. There is a vast amount of land which is useless, unproductive, and costly to keep, and valuable only for the use which the future is quite sure to bring to it. If the railroad is not likely to make any more extended use of the land than it now does, the damages would be one sum; while, if it be sure, or in a high degree probable, that it will soon make a greater and more beneficial use of the land, the damages may be another sum. And so it is a general principle affecting such questions that, if the future use of land will in all probability be greater and more valuable than its present use, such probability may be an element to be received into the calculation to establish present value. Property is more valuable on a rising than on a stationary market. The principle, however, has not expansive tendencies. It is not what use the railroad may possibly make of the land in the future, nor even what need it may probably have for it at some uncertain and far-off day. It is the near, immediate future that may influence; the uncertain, indefinite, doubtful future cannot. The doctrine is to be carefully applied. The subject itself does not admit of exact limits. Supposed future value is by no means to be taken as present value. It is an element only, among other considerations, which may afford light upon the question. Moulton v. Newburyport Water Co., 137 Mass. 163, 167. The general idea is safely expressed in Boom Co. v. Patterson, 98 U. S. 403, where it is said: "The compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the near future." And the authorities are generally to the same effect; the one most fitting the question of the present case being Railroad v. McComb, 60 Me. 290.

We think all other matters were delivered by the commissioner to the jury correctly and clearly. One point taken by the company, however, deserves especial consideration. The jury were instructed not to allow to the company, in the assessment of damages, any of the expense which will be incurred by them in building and maintaining so much of the new ways as are within the limits of their own location. The statute (Rev. St. c. 51, § 38) lays that burden on the railroad corporation. The railroad is obliged to build and maintain those crossings at its own expense. But the company contends that, inasmuch as the statute was passed after their charter was granted, it would be unconstitutional to apply its provisions to highways not in existence when their road was built. By an amendment of the company's charter, accepted by them, it was provided that "the company shall be subject to the general laws existing in the state, or which may be hereafter passed by the state." Priv. Laws 1853, c. 180, (Webb, R. R. Laws Me. 497.) See Const. Me. art. 4, p. 3, § 14. One of those laws is that a railroad charter, such as this, may be amended or altered by the legislature. The question therefore, is whether, in view of the power thus reserved to the legislature, the statute relating to railroad crossings, as affecting this railroad in this instance, is or not constitutional. It is impossible to lay down any exact rule as to the lawful extent of the exercise of this reserved legislative power, and each case depends largely on its peculiar facts. But it is universally admitted that the power of alteration and amendment is not without limit. The alterations must be just and reasonable. The vested...