Uncanoonuck Rd. Co. v. Orr

• Decision Date: 16 March 1894
• Citation: 41 A. 665,67 N.H. 541
• Parties: UNCANOONUCK ROAD CO. v. ORR.
• Court: New Hampshire Supreme Court

41 A. 665

67 N.H. 541

UNCANOONUCK ROAD CO.

v. ORR.

Supreme Court of New Hampshire. Hillsboro.

March 16, 1894.

Case reserved from Hillsboro county.

Action by the Uncanoonuck Road Company against Samuel Orr. Question reserved as to whether plaintiff was entitled to the damages assessed, or to equitable relief, on the facts as found by the court. Case discharged.

The plaintiffs are a corporation chartered June 26, 1877 (Laws 1877, c. 133). The charter empowers them to lay out, make, and keep in repair a road leading from the base to the summit of the South Uncanoonuck Mountain, in Goffstown, by such route and in such direction as is most practicable; also to build and own toll houses and other buildings necessary for their business, to erect and maintain gates across their road, and to collect rates and tolls from persons passing over it. It provides that the damages for land taken, if the corporation and the landowner cannot agree upon the amount, shall be determined on the petition of either party to the supreme court. In July, 1877, the plaintiffs voted to build the road and an observatory on the summit of the mountain. The defendant owned the summit and adjacent land over which the plaintiffs intended to build their road. Before they began to build, their president, acting pursuant to and under the charter, went to the defendant with reference to taking such of his land as might be necessary, and agreeing with him upon the amount of his damages. Both parties understood that the plaintiffs proposed to take the defendant's land for the road and the observatory by the right of eminent domain, unless they should be able to agree with him on the amount of his damages, and with this understanding the defendant orally waived his right to compensation for such taking. The plaintiffs thereupon laid out and built the road and the observatory at an expense of about $1,000. The location of the road and the building of the road and the observatory were completed in July, 1877, with the full knowledge of the defendant, and without his objection; and the road and the observatory have since been kept in repair by the plaintiffs, and used by the public, the net receipts on the tolls being a source of income on the capital invested. The damage to the defendant from the taking of his land was slight. He owns a large wood and timber lot around the summit of the mountain and adjacent to the road, and has used the road in clearing his lot, under the plaintiffs' written permission.

This privilege is valuable to him, the road being the only practical way of reaching and clearing the lot. From 1877 to 1891 the defendant did not question the plaintiffs' right In 1891 he demanded rent of them, which was refused. In August, 1892, his servants, by his order, and without the plaintiffs* consent felled trees across the road, so as to obstruct its free passage, and tore down parts of the observatory, which are the acts complained of in the writ. If, on the foregoing facts, the plaintiffs are entitled to recover, the...