Wright v. Pemigewasset Power Co.
Decision Date | 02 June 1908 |
Citation | 75 N.H. 3,70 A. 290 |
Parties | WRIGHT v. PEMIGEWASSET POWER CO. |
Court | New Hampshire Supreme Court |
Transferred from Superior Court, Belknap County; Stone, Judge.
Petition by Ambrosia R. Wright against the Pemigewasset Power Company for assessment of damages under the flowage act. Transferred from superior court on defendant's exceptions; verdict having been for plaintiff. Exceptions overruled.
The plaintiff owns a farm bordering on the Pemigewasset river, which the defendants overflowed by means of a dam built in 1902 and 1903 on their land further down the stream. They made no settlement with the plaintiff, and in March, 1905, she brought an action at law for damages. In August, 1907, this petition was filed by agreement of parties as an amendment to the original action. It was then agreed that the defendants' dam was a public benefit, and they joined with her in requesting the court to ascertain the value of the easement they wished to acquire. It was also agreed that the court should adjust the question of interest. The plaintiff was permitted to show that the flowing of her land caused disagreeable odors whenever the water receded. The jury having returned a verdict for the plaintiff, the court added 50 per cent. thereto and interest from February 7, 1903. The defendants excepted (1) to the addition of interest; (2) to the addition of 50 per cent. to the verdict; and (3) to the admission of evidence as to disagreeable odors.
Streeter & Hollis, for plaintiff.
Sargent & Niles, for defendant.
The question raised by the defendants' first exception is whether it was permissible in any view of the facts to compute interest on the verdict from February 7, 1903; that being the date upon which the defendants flowed the plaintiff's land. In answering this question, it will be necessary to consider the nature of this proceeding. Two views have been presented: One that it is an action to assess the damages the plaintiff has sustained because of the defendants' illegal acts; and the other that it is to ascertain the value of the flowage rights the defendants wish to acquire in the plaintiff's land. It is manifest that the latter view is the correct one; for otherwise it would not be an answer for the defendants to disclaim an intention of acquiring any rights in the land. It is well settled that a petition of this nature will be dismissed where a millowner files a disclaimer, and that the landowner will thereupon be remitted to an action at law to recover the damages he has sustained by reason of the millowner's acts in flowing his land. Gordon v. Paper Co., 72 N. H. 340, 56 Atl. 757; Jones v. Whittemore, 70 N. H. 284, 47 Atl. 259; Mitchell v. Electric Co., 70 N. H. 569, 572, 49 Atl. 94; Chapman v. Company, 67 N. H. 180, 38 Atl. 16; Hovey v. Perkins, 63 N. H. 516, 526, 3 Atl. 923; Town v. Faulkner, 56 N. H. 255; Pollard v. Moore,
51 N. H. 188. Inasmuch as the purpose of the proceeding is to ascertain the value of the flowage rights the defendants wish to acquire, and not to assess the damages the plaintiff has sustained by reason of the defendants' illegal acts, it would seem that the question whether the court erred in computing interest on the verdict from the time the land was in fact flowed would be solved by ascertaining whether on that date (February 7, 1903) the defendants knew or should have known that their dam would overflow the plaintiff's land, and intended to acquire flow-age rights by condemnation proceedings. If they did, it was their duty to then pay her for the rights they wished to acquire. For their failure to do so interest should be added from that date; for interest is given as damages for the unlawful detention of money. Chauncy v. Yeaton, 1 N. H. 151, 158; Felton v. Fuller, 35 N. H. 226, 229; Adams v. Blodgett, 47 N. H. 219, 90 Am. Dec. 509; Thompson v. Railroad, 58 N. H. 524; Snow v. Perk-Ins, 60 N. H. 493, 49 Am. Rep. 333. The plaintiff's land is on the Pemigewasset river above the defendants' dam, and is flowed thereby. The defendants knew, or ought to have known, that, as a direct consequence of their acts, her land would be flowed to the extent that it was below the level of the water as raised by the dam. If the dam was a public benefit, and the defendants intended to condemn the land when the dam was built and the land was flowed, they acquired the right to take it under the statute. Lebanon v. Olcott, 1 N. H. 339; Ash v. Cummings, 50 N. H. 591, 622. The right attached when the dam was built with such an intention (Pub. St. 1901, c. 142, § 19), and their duty to compensate the plaintiff arose when their desired rights were determined or located by actually flowing the land (Pub. St. 1901, c. 142, § 13). As the defendants did not settle with the plaintiff at that time or within 30 days thereafter, or take the necessary steps to have her land condemned, she could have brought an action at law against them to recover the damages she sustained (Roberts v. Company, 73 N. H. 121, 59 Atl. 619), or have maintained a proceeding under the flow-age act in case the defendants joined with her in asking the court to ascertain the value of the rights they wished to acquire. By joining with her in the proceeding and making such a request, they acknowledged their intention to acquire rights of flowage by condemnation proceedings, and furnished evidence from which it could be found that they entertained such an intention at the time the flowing was begun. Under these circumstances, the court was justified in computing interest on the verdict from the time the plaintiff's land was flowed.
2. The question whether section 2, c. 50, p. 41, Laws 1893, repeals the provisions of chapter 142, Pub. St. 1901, relative to adding 50 per...
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