Stewart v. Village of Rutland

[15] The opinion of the court was delivered by Rowell, J. This case is very meagerly presented to us; but from the commissioners’ report and the petitioners’ brief — the only papers furnished us — as well as from the drift of the argument, we gather that $135 of the larger sum awarded as damages were in fact awarded, not for the actual taking of land for the discharge of sewage, but for a nuisance created by such discharge from 1883, when the sewer was built, to July, 1885, when its location was changed pending the hearing before the commissioners. All damage for the actual taking of land for sewer purposes we understand to be covered by the smaller sum of $15 allowed as damages. If we are right in our understanding of the case, it is clear that the petitioners can recover only the smaller sum. The village charter — Sts. 1882, No. 204 — does not prescribe any rule for the assessment of damages, nor determine what shall constitute elements of damage, except that landowners may be assessed for benefits, but provides in general terms for such compensation as damages as the trustees shall award, and on ré-assessment, that the commissioners shall examine the premises and the circumstances of the case, and make a new appraisal, and that on their report the County Court may set aside the former assessment, and render judgment for such sum as appears just. Now in this State the course is when private property is taken for public use by the exercise of the right of eminent domain, and no different rule is prescribed by statute, to limit compensation to damages sustained by the actual taking of the property, excluding all merely indirect and consequential damages. Hatch v. Vermont Central R. R. Co. 25 Vt. 49; Sabin v. Vermont Central R. R. Co. 25 Vt. 363; Richardson v. Vermont Central R. R. Co. 25 Vt. 465. The same rule prevails generally in this country. Sedgw. on Const. and Stat. Law (2d ed.), 454, et seq., and Pomeroy’s notes. [16] But a different rale prevails in England by statute. Section 68 of the Lands Clauses Act, 8 Viet. c. 18, provides for “compensation in respect of any lands, or of any interest therein, which shall have been taken for,' or injuriously affected by, the execution of the works,” etc. But this section is held to have reference only to cases in which a party is injuriously affected by reason of acts unauthorized to be done by a public company in pursuance of the provisions of its own private act, and as inapplicable to cases in which the injury complained of may be compensated by recourse to an action at law for damages, as it may be when resulting from acts not authorized by statute. This result is reached by applying what is considered a universal rule, applicable to this class of statutes, that statutory compensation is given for damages arising from acts authorized by statute; that is, in effect, for taking away the common law right of action of the party injured in that behalf. Broadbent v. The Imperial Gas Co. 7 DeG. M. & G. 436; s. c. affirmed, 7 H. L. Cas. 600. In that case the defendant was perpetually enjoined from the further manufacture of gas in. a manner injurious to plaintiff’s crops, on the ground that such manufacture was unauthorized by statute. In the course of his opinion, delivered on behalf of himself and Mr. Justice Ckomptom, sitting as advisory to the Lord Chancellor, Mr. Justice Willes, by way of illustration, put a case contemplated as possible by the Gas Works Clauses Act, 1847, in which the compensation clause of the Lands Clauses Act would be wholly inoperative, namely, that of a public nuisance caused by making or supplying gas. In such a case, he said, if the compensation clause was applicable, the company, after being compelled to compensate by anticipation all private injuries occasioned, or to be occasioned, by the nuisance, would still be liable to indictment, even upon the prosecution of any of the persons so compensated, which would be absurd. And it is further held under said section of the Lands [17] Clauses Act that in order to entitle a party to compensation thereunder, the injury must be done to the land, or to some interest therein, and that a mere personal injury, though connected with the enjoyment of particular land, is not a ground of compensation. Ricket v. Metropolitan Railway Co. 2 L. R., H. L. Cas. 175; Regina v. Metropolitan Board of Works, 4 L. R., Q. B. 358. This principle is applicable to the case at bar. The gist of the petitioners’ complaint is for a personal injury, in that the rest of their premises are rendered less enjoyable by reason of the noxious discharge of the sewer. This is a damage ultra the taking of land, for which compensation, if obtainable at all, must be sought in some other way. Judgment reversed, and judgment on the report for the petitioners for the smaller sum, with costs to the defendant in this court.