Riche v. Bar Harbor Water Co.

• Decision Date: 06 April 1883
• Citation: 75 Me. 91
• Parties: GEORGE I. RICHE v. BAR HARBOR WATER COMPANY.
• Court: Maine Supreme Court

75 Me. 91

GEORGE I. RICHE v. BAR HARBOR WATER COMPANY.

Supreme Judicial Court of Maine.

April 6, 1883

ON REPORT.

Trespass for entering plaintiff's premises between May 1, 1881 and the date of the writ, and erecting a reservoir and laying down water pipes.

The writ was dated September 9, 1881. The plea was general issue and brief statement justifying the acts complained of under their charter, which read as follows:

" An act to incorporate the Bar Harbor Water Company. Be it enacted by the senate and house of representatives in legislature, assembled as follows:

Section 1. David Rodick, Stephen Higgins, Fountain Rodick, Samuel N Higgins, Charles Higgins, Albert F. Higgins, John A. Serenus Rodick, H. Rodick, Alfred E. Conners and Edwin G. Desisle with their associates and successors, are hereby made a corporation by the name of the Bar Harbor Water Company, for the purpose of conveying to and supplying the village and vicinity of Bar Harbor, in the town of Eden, Hancock county, with pure and wholesome water, and said corporation, for said purposes may hold real and personal estate, necessary and convenient therefor, not exceeding in amount fifty thousand dollars.

Section 2. Said corporation is hereby authorized, for the purposes aforesaid, to take, detain and use the water of Eagle Lake, Duck Brook, or either of them, in said town of Eden, and is also authorized to erect, maintain dams and reservoirs and lay and maintain pipes and aqueducts, necessary for the proper accumulating, conducting, discharging, distributing and disposing of water and forming proper reservoirs thereof; and said corporation may take and hold any lands necessary therefor, and may excavate through any lands where necessary for the purpose of this incorporation.

Section 3. Said corporation shall be held liable to pay all damages that shall be sustained by any persons by the taking of any land or other property, or by flowage, or by excavating through any land, for the purpose of laying down pipes and aqueducts, building dams and reservoirs, and also damages for any other injuries resulting from said acts; and if any person sustaining damage, as aforesaid, and said corporation shall not mutually agree upon the sum to be paid therefor, such person may cause his damages to be ascertained in the same manner and under the same conditions, restrictions and limitations as are by law prescribed in the case of damages by the laying out of highways.

Section 4. Said corporation is hereby authorized to lay down, in and through the streets and ways in said town of Eden, all such pipes, aqueducts and fixtures as may be necessary for the purposes of their incorporation, under such reasonable restrictions as the selectmen of said Eden may impose. And said corporation shall be responsible for all damages to persons and property occasioned by the use of such streets and ways, and shall further be liable to pay to said town of Eden, all sums recovered against said town for damages from obstructions caused by said corporation, and for all expenses, including reasonable counsel fees, incurred in defeating such suits, with interest on the same.

Section 5. Said corporation shall have power to cross any private or public sewer, or to change the direction thereof, where necessary for the purposes of their incorporation, but in such manner as not to obstruct or impair the use thereof; and said corporation shall be liable for any injury caused thereby.

Section 6. Said corporation shall cause surveys to be made for the purpose of locating their dams, reservoirs and pipes and other fixtures, and cause accurate plans of such location to be filed in the office of the town clerk of said Eden, and notice of such location shall be given to all persons affected thereby, by publication in some public newspaper, in said county; and no entry shall be made upon any lands, except to make surveys, until the expiration of ten days from the said filing and publication.

Section 7. Any person who shall wilfully injure any of the property of said corporation, or who shall knowingly corrupt the waters of said Eagle Lake and Duck Brook, or any of their tributaries, in any manner whatever, or render them impure, whether the same be frozen or not, shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not less than one year, and shall be liable to said corporation for three times the actual damage, to be recovered in any proper action.

Section 8. The capital stock of said corporation shall be five thousand dollars, which may be increased to fifty thousand dollars by a vote of said corporation; and said stock shall be divided in shares of fifty dollars each.

Section 9. The town of Eden is hereby authorized to subscribe to the stock of said corporation to an extent not exceeding two thousand dollars, by a two-thirds vote, at any legal meeting called for that purpose, but no more than one meeting shall be called for that purpose in any one year.

Section 10. The first meeting of said corporation may be called by a written notice thereof, signed by any two corporators herein named, served upon each corporator by giving him the same in hand or leaving the same at his last, usual place of abode, seven days before the time of meeting.

Section 11. This act shall take effect when approved.

Approved February 10, 1874."

Notice of location, dated April 4, 1881, was published in Ellsworth American, April 7, and April 14, 1881, as follows:

" State of Maine, Hancock county, Eden, April 4, 1881.

Notice is hereby given that the Bar Harbor Water Company, (for the purpose of erecting thereon a reservoir or reservoirs, and such other works as they may deem necessary), caused a survey of a certain lot of land to be made, and the plan thereof to be filed in the office of the town clerk of Eden, as by law required.

This land is situated upon the hill known as Cunningham's Hill, (at Bar Harbor) and was formerly owned, or supposed to be owned, by A. P. Cunningham or others. For further particulars interested parties are referred to the plan in the office of the town clerk in Eden.

Bar Harbor Water Company."

Other material facts stated in the opinion.

Hale and Emery, for the plaintiff.

The company had authority under their charter to take lands for dams, for reservoirs, for pipes, and for aqueducts--these four, and no more. In order to secure the right they must " cause surveys to be made for the purpose of locating their dams," & c. and make plans and give notice. This was clearly to give notice to the land owner. The survey was to be specific and for a single object, whether dam, reservoir, pipe or aqueduct. It was not to be general, and the company to build dams, reservoirs, pipes and aqueducts ad libitum, within the lines. The plan was to be accurate, specific and not general, so that the owner might know just how much and what land was taken, and for what purpose. He might not object to a pipe but might object to a reservoir.

The notice must be equally specific. It must be a " notice of such location." It must disclose the place where, and especially the particular purpose. Spofford v. B. & B. R. R. Co. 66 Me. 26.

The statute does not say, " notice that a survey had been made," " notice of plan," but " notice of such location." The notice was to be a sort of a return, a publication of all the facts.

The notice given does not state what nor whose land was taken, nor for what purpose. It says: " for the purpose of erecting thereon a reservoir or reservoirs, and such other works as they deem necessary." It is not confined to the purposes for which they were authorized to take land, nor for such works as were really necessary, but all the works that the company might deem necessary. This is a very cavalier way of disposing of private rights. Glover v. Boston, 14 Gray 282; Wilson v. Lynn, 119 Mass. 174; W. P. Co. v. Allen, 120 Mass. 352; Lewiston Case, 30 Me. 19; P. S. & P. R. R. Co. v. Co. Com. 65 Me. 292; Hazen v. B. & M. R. R. Co. 2 Gray 574; Pinkerton v. B. & A. R. R. Co. 109 Mass. 527; Kohlhepp v. W. Roxbury, 120 Mass. 596; Lund v. New Bedford, 121 Mass. 286; Drury v. R. R. Co. 127 Mass. 571.

Counsel further ably argued other questions presented by the case, citing: Pierce on Railroads, 254, 163; Jeffries v. Swampscott, 105 Mass. 535.

To the point that authority was not well given by the charter to take land, counsel cited: Perry v. Wilson, 7 Mass. 395; Thacher v. Bridge Co. 18 Pick. 501; Lowell R. R. v. Salem, 2 Gray 35; Haverhill Bridge v. Co. Com'rs, 103 Mass. 120; Conn. River R. R. Co. v. Co. Com'rs, 127 Mass. 50; Cushman v. Smith, 34 Me. 247; Lee v. Pembroke, 57 Me. 488; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Stockton & Ione R. R. Co. 53 Cal. 208; Bohlman v. Green Bay, 30 Wis. 105; Hooker v. New Haven & North Hampton Co. 14 Conn. 146; Ash v. Cummings, 50 N.H. 591; Cooley's Const. Lim. 562.

A. P. Wiswell, for the defendants, cited: Stewart v. Polk Co. 1 Am. R. (27 Iowa) 238; Cooley's Const. Lim. 182, 532, 560; Field on Corp. § § 441, 479; Haverhill Bridge Co. v. Co. Com'rs, 103 Mass. 120; Railroad Co. v. Turner, 31 Ark. 494 (25 Am. R. 564); Cushman v. Smith, 34 Me. 247; Nichols v. R. R. Co. 43 Me. 356; Davis v. Russell, 47 Me. 443; Perkins v. R. R. Co. 72 Me. 95.

APPLETON C. J.

There is nothing better settled than the power of the legislature to exercise the right of eminent domain, for purposes of public utility. This may be done through the agency of private corporations, although for private profit when the public is thereby to be benefitted. It is upon this principle that private corporations have been authorized to take private property, for the purpose of making public highways railroads, canals, erecting wharves and...