Thompson & Nesmith v. Manchester Traction, Light & Power Co.

• Decision Date: 05 June 1917
• Citation: 78 N.H. 433,101 A. 212
• Parties: THOMPSON & NESMITH v. MANCHESTER TRACTION, LIGHT & POWER CO.
• Court: New Hampshire Supreme Court

101 A. 212

78 N.H. 433

THOMPSON & NESMITH

v. MANCHESTER TRACTION, LIGHT & POWER CO.

Supreme Court of New Hampshire. Merrimack.

June 5, 1917.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Petition, under Pub. St. 1901, c. 142, by Albert Thompson and Mary E. Nesmith, against the Manchester Traction, Light & Power Company, to assess damages caused by flowing lands. On transfer without ruling. Petition of plaintiffs ordered to stand for trial in accordance with the agreement of transfer, and case discharged.

Petition under chapter 142 of the Public Statutes to assess the damages caused to the plaintiffs by flowing their land by the defendants. The petition coming on for hearing, the defendants represented that they had filed a petition with the Public Service Commission under chapter 164 of the Laws of 1911 and amendments thereto, to acquire as against the plaintiffs certain rights of flow-age or easements necessary to the maintenance of certain flashboards to be used on their dam, and for a necessary extension of their plant and works. The defendants filed a plea and motion, claiming that the proceedings before the Public Service Commission, under chapter 164 of the Laws of 1911, and Hie amendments thereto, supersede the proceedings begun by the plaintiffs under the flowage act, and requested the court so to rule, and to continue the petition under the flowage act until the final determination of the petition of the defendants before the Public Service Commission. The case was transferred without ruling, upon the agreement that, if the provisions of chapter 164 of the Laws of 1911 supersede chapter 142 of the Public Statutes for the determination of the value of the rights and easements referred to under the circumstances in this case, the defendants' motion shall be granted; if not, then this case shall stand for trial in its order.

Robert W. Upton, of Concord, for plaintiffs. Streeter, Demond, Woodworth & Sulloway, of Concord, and Jones, Warren, Wilson & Manning, of Manchester, for defendants.

PLUMMER, J. The defendants contend that they are entitled to acquire flowage rights under section 13d of chapter 164 of the Laws of 1911, and that the Flowage Act (P. S. c. 142) respecting public utilities is thereby superseded. This section which was not changed by amendments made in 1913, provides that:

"Whenever it is necessary, in order to meet the reasonable requirements of service to the public that any railroad corporation or public utility subject to supervision under this act should construct a line, branch line, extension or a pipe line, conduit, line of poles, towers or wires across the land of any other person or corporation, or should acquire land for necessary extension of any plant or works operated by such railroad corporation or public utility, and such railroad corporation or public utility cannot agree with the owner or owners of such land as to the necessity or the price to be paid therefor, such railroad corporation or public utility may petition the commission for such rights and casements or for permission to take such lands as may be needed for said purposes."

The rights and easements that public utilities are empowered to take by eminent domain under this act are to construct a line, branch line, extension or a pipe line, conduit, line of poles, towers or wires across the land of any other person or corporation. And the land that this law enables them to acquire is land for necessary physical extension of any of their plants or works; that is, the land upon which they desire to construct buildings or other works. The defendants contend that the use of the words "rights and easements" and "land" in the statute makes it broad enough to include flowage rights. Undoubtedly these terms are sufficient to describe such rights. But these words do not refer to flowage rights. They have reference to certain definite purposes enumerated in the statute as above pointed out.

The act does not give public utilities the power to secure flowage rights by eminent domain. Its language does not indicate that such was the intention of the Legislature. The rights that they can obtain by eminent domain are specifically stated, and flowage rights are not included. This statute, which gives to public utilities the special and extraordinary right to condemn private property for their uses, being an exercise of sovereign power, and in derogation of common right, must be strictly construed, and should not be extended beyond its plain and unmistakable provisions. Claremont Co. v. Putney, 73 N. H. 431, 62 Atl. 727; Mitchell v. Electric Co., 70 N. H. 569, 49 Atl. 94; Cooley's Con. Lirh. (7th Ed.) 762; Harvey v. Aurora & Geneva Ry. Co., 174 Ill. 295, 304, 51 N. E. 163; U. S. v. Rauers (D. C.) 70 Fed. 748; Moorhead v. Little Miami R. R. Co., 17 Ohio, 340, 351; Lance's Appeal, 55 Pa. 16, 26, 93 Am. Dec. 722. "In the construction of powers given to a corporation to take land by eminent domain, every reasonable doubt is to be resolved adversely. The affirmative must be shown and silence is negation." 15 Cyc. 567; Providence, etc., R. Co., Petitioner, 17 R. I. 324, 343, 21 Atl. 965. In Claremont Co. v. Putney, supra, the plaintiffs claimed that they were authorized to take water rights by eminent domain because their charter gave them the power to "lease, purchase, hold, and acquire such real and personal estate as may be necessary or convenient in carrying out the purposes for which said corporation is organized." Laws 1901, c. 276. The court in answer to this claim said:

"The first contention of the plaintiffs is that it is to be implied from the use of the word 'acquire' in their charter that the Legislature intended to confer upon them the power to take by eminent domain such property, real and personal, as might be necessary to the prosecution of their business. But the answer to this is that as the exercise of this power is against common right, and the plaintiffs' charter does not expressly confer the power, or point out the steps to be...