Wilson v. European & N.A. Ry. Co.

• Decision Date: 08 May 1877
• Citation: 67 Me. 358
• Parties: NATHANIEL WILSON v. EUROPEAN & NORTH AMERICAN RAILWAY COMPANY.
• Court: Maine Supreme Court

67 Me. 358

NATHANIEL WILSON v. EUROPEAN & NORTH AMERICAN RAILWAY COMPANY.

Supreme Judicial Court of Maine.

May 8, 1877

ON REPORT.

TRESPASS on Freeze lot.

At the April term of S. J. C. 1875, the action was referred to John A. Peters, who met and heard the parties December 13, 1875 and returned into court the following award:

" I find that the plaintiff had a mortgage upon the locus, in full force, when the land was taken by the defendants for the extension of a branch of their railroad track; but the plaintiff had no actual possession of it till after the damages allowed by the commissioners for the taking were paid to the mortgager. The mortgage was given to the plaintiff by D. W Freeze, dated May 25, and recorded May 26, 1869, to secure a note of that date for $112, payable on or before July 1, 1870.

It is not questioned that all the proceedings of the railroad company and the commissioners were regular and authorized except that the plaintiff claims that the award of damages should have been made to him (the mortgagee) when they were allowed and paid to said Freeze (the mortgager). Either side to make such reference to any of the proceedings of the commissioners as they may see fit.

No part of the mortgage debt has been paid, and in January 1871, the plaintiff got possession of the locus (not interfering with the land taken for the track) by a judgment for a foreclosure, and the mortgage stands now by lapse of time foreclosed.

On July 14, 1870, when the commissioners were upon the road, to take their views and hear the parties upon the questions of damages, the plaintiff was before them as an attorney as to other lots, but not as to this lot, and at that time notified the commissioners and the acting attorney of the railroad company present, who was also a director, that he had a claim on this lot (the locus) by note and mortgage, and ‘ should claim the damages assessed upon it.'

Nothing else appeared about it afterward until demands were made for the damages allowed upon the defendants, which were after the damages were allowed Freeze and to him paid.

Upon these facts and findings the law court will determine whether the plaintiff can recover against the defendants or not. If he can recover at all, then the measure of damages to be settled. If the plaintiff can recover for the easement, the defendants to continue as rightfully in possession, the damages to be seventy-five dollars with interest from July 1 1870. But if the defendants are trespassers without the right to continue in possession, then the damages to be fifty dollars and interest from such date. The prevailing party to recover costs."

N. Wilson, pro se, with whom was A. Sanborn.

C. P. Stetson, for the defendants.

The defendant company located its railroad over land of one Freeze, who was then the owner in possession. Damages were assessed by the county commissioners, as provided by statute, and the amount awarded paid to Freeze. Wilson, mortgagee, brings this action of trespass. He did not take possession of the premises until after the location, assessment and payment of damages; he cannot maintain this action, because the estimation of damages and payment to Freeze, gave the company the right of possession and title to the locus for the purposes of its railroad. R. S., c. 51. Breed v. Eastern Railroad, 5 Gray 470 n. Parish v. Gilmanton, 11 N.H. 293.

PETERS J.

The question is, whether it is necessary that a mortagee, whose mortgage is recorded, not being in actual possession of the mortgaged premises, should have notice of the pendency of proceedings instituted by a railroad corporation before county commissioners to ascertain the damages of land owners for land taken for the track of its road.

We think a mortagee should be notified and made a party to the proceedings, and that the railroad company takes the risk of a want of notice if none is given. Practically, however, in many cases the necessity of notice is avoided; as where the mortgagee waives the damages, being satisfied with his security upon the land that is not taken; or where the damages are awarded to the mortgager and are paid over to the mortgagee upon his receipt or release therefor. And, we have no doubt, a mortgagee might resort to proceedings in chancery to recover the damages awarded to the mortgager. But the railroad corporation must see that the mortgagee is somehow paid or satisfied for the land taken so far as covered by the mortgage.

The statute (R. S., c. 51, § 2,) provides that " persons having any interest in land (taken for railroad) have the rights and remedies of owners to the extent of their interest." Certainly, a mortgagee whose mortgage is recorded has an interest as an owner within the meaning of this section. The easement taken may despoil the mortgaged land of all its value. Without notice a mortgagee might lose his entire security by proceedings carried on without his knowledge or consent. By our law, it is well settled that the strict legal estate passes to the mortgagee, to be defeated only by the subsequent performance of the condition annexed. He has the right to take possession at any time, unless there be an agreement between the mortgager and mortgagee to the contrary. This right is supported by repeated decisions, at the head of which is Blaney v. Bearce, 2 Me. 132. He may support an action of trespass quare clausum fregit against a stranger for an injury to the freehold. Frothingham v. McKusick, 24 Me. 403. And even against the mortgager for such an injury. Stowell v. Pike, 2 Me. 387. And in such case he may recover of the mortgager to the extent of the injury to the estate, without proof of the insufficiency of the remaining security. Byrom v. Chapin, 113 Mass. 308. He may insure the mortgaged estate against fire, and in case of loss collect the insurance without liability to account for it upon the indebtedness of the mortgager, where there is no agreement between them to that effect. Cushing v. Thompson, 34 Me. 496. If in possession he may maintain a complaint in his own name for damages...