Riche v. Bar Harbor Water Co.

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 basins, establishing ferries, &c. The use being public, the determination of the legislature that the necessity, which requires private property to be taken, exists, is conclusive. To constitute a public use, it is not necessary that the entire community, or even a considerable portion of it should directly participate in the benefits to be derived from the purpose for which the property is taken. Accordingly an act incorporat [97] ing a company to take springs, lands and rights, for the purpose of supplying a village with pure water, subject to the. payment of damages as provided by law, in the case of highways, was held constitutional. So, from considerations affecting the health and comfort of a dense population, private property may be taken for a park or to prevent a nuisance dangerous to the health of the community, and the nuisance be abated. Talbot v. Hudson, 16 Gray, 417; Lumbard v. Stearns, 4 Cush. 60; Holt v. Somerville, 127 Mass. 408; Bancroft v. Cambridge, 126 Mass. 438. The property of the plaintiff was taken for public uses. The taking was required by public exigencies. It was taken under and by virtue of an act of the legislature. It remains to be seen whether the defendants have made out a justification under their charter. 1. The notice given was sufficient. It was duly published in the Ellsworth American, under the dates of April 7 and 14,1881. The plan of the land taken of the plaintiff, shows a survey of the lot in controversy to have been made on the twenty-fifth of the preceding March. The notice recites that the defendant had " 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.” It goes on to add, that, "the land is situated upon the hill known as Cunningham’s Hill, (at Bar Harbor) and was formerly owned, or supposed tobe owned,by A. P. Cunningham or others. Eor further particulars, interested parties are referred to the plan in the office of the town clerk in Eden. Bar Harbor Water Company.” It is true this notice is dated April 4. Its publication was on April 7. It was effective as a notice only from that date. But on that date the plan referred to was in the office of the town clerk. Any one interested might then have seen it, and before that date there was no notice. The reference to a plan on file would seem to be sufficient, especially as the plan when filed is particularly designated. Stone v. Cambridge, 6 Cush. 271. In [98] Wilson v. Lynn, 119 Mass. 174, Gray, C. J., remarks: "If the plan had been referred to it would have been sufficient.” The objection is taken that while the notice states that the survey was made " for the purpose of erecting thereon a reservoir or reservoirs,” it is added, "and such other works as they may deem necessary.” The purpose is a legitimate one. The other works deemed necessary are those necessary to carry into effect the general object of the corporation. The meaning is obvious. The necessity is what is required for the effectiveness of the reservoir. It matters not to the land owner, whether his land is taken for dams, reservoirs or pqies, nor when a lot is taken, is it requisite that the notice should set forth what specific portion of it is to be used for one purpose and what for another. The corporation will determine on what part of the land taken and necessary, the dams, reservoirs or pipes shall be located as will best subserve the objects they have in view. 2. The description of the land taken is sufficient. It describes the lot as on Cunningham Hill, in the village of Bar Harbor, in the town of Eden, and states that it was formerly owned by Anson P. Cunningham or others. It gives monuments at the corners and the length of line, and the courses by compass. Accompanying this is a plan. A deed adopting this description and placed on record, would be notice to the public. It is not necessary to consider whether or not the description of other lands taken is sufficient. This litigation regards only the rights of this plaintiff. 3. The survey and plan being made' for the company, and placed by their agent on file, in the town clerk’s office, for public inspection by all parties interested, the certificate of the town clerk thereon, and his testimony of that fact must be deemed sufficient evidence of the due filing of such plan and survey. 4. The defendants entered upon the premises in controversy, under and by virtue of their charter. They made the necessary survey. They gave the required notices. The survey was made, the notice given and the entry and subsequent occupation wei'e under the powers conferred by their charter. It was held in Cushman v. Smith, 34 Maine, 247, that the " clause in the eonsti99 tution which prohibits the taking of private property for public use,, was not designed to operate, and it does not operate to prohibit the’ legislature from authorizing an exclusive occupation of private property, temporarily, as an incipient proceeding to the acquisition of a title to it, or to an easement in it.” This is precisely what and all that has been done. But it is urged that compensation should precede the taking-,, and that no adequate provision is made for compensation. The constitution, while prohibiting the taking for private' property for public uses, does not require that the payment off such compensation should precede its taking. Cushman v. Smith, 34 Maine, 247; Nichols v. Som. & Ken. R. R. Co. 43 Maine, 356; Davis v. Russell, 47 Maine, 443; Cairo & Fulton R. R. Co. v. Turner, 25 Am. Rep. 564; 31 Ark. 494. The mode and manner by which the individual, whose property is taken for public use, shall obtain compensation, is to be determined by the legislature. It cannot be determined in any other way. "The legislative power is left entirely free from, embarrassment,” observes Sheplev, C. J., in Cushman v. Smith, before cited, "in the selection and arrangement of the measures-to be adopted to take private property, and appropriate it to public use, and to cause a just compensation therefor.” The provision for compensation is found in section three of the defendants’ charter. It is precisely the one afforded where land is for highways and railroads. It is the one uniformly adopted when private property is required by some public exigency. If deemed sufficient in those cases, it must be deemed’ equally so in others. Cushman v. Smith. "If,” observes; ENGLISH, C. J., in Cairo & Fulton R. R. Co. v. Turner, 25 Am. Rep. 564, "it be objected that the corporation might not pay the judgment rendered or the award of damages, and it and its securities might be insolvent, and thereby compensation might be defeated; it may be answered that the land owner is not divested of his title, and the right to the easement does not vest in the corporation until the damages awarded are paid; and besides the owner’s paramount claim upon the land, chancery, on his timely application, would, as we have seen, restrain the [100] •corporation, by injunction, from tbe use of tbe property, until it .renders compensation.” 5. Tbe alleged trespasses complained of were committed on tbe first of May, 1881. This suit was commenced on the ninth of ■ September, following. That tbe plaintiff bad knowledge of tbe .•defendants’ proceedings is evidenced by tbe institution of this ¡suit. He has made no attempt to obtain compensation in the mode provided by statute. He can yet do it. He cannot maintain trespass within tbe time in which application may be made for determining tbe damages for tbe land taken, and before making such application. Nichols v. Som. & Ken. R. R. Co. 43 Maine, 356; Davis v. Russell, 47 Maine, 443. Tbe action Is not maintainable. Plaintiff nonsuit. Walton, Danforth, Virgin, Peters and Stmonds, JJ., •concurred.