Dearborn v. Boston, Concord & Montreal Railroad

Eastman, JV* By the act of December 25th, 1844, the railroad commissioners, in conjunction with the road commissioners for the county where the lands taken for any railroad should lie, are required to assess the damages sustained by the owners of lands in the same way and manner as road commissioners in the several counties were by law required to do. Pamphlet Laws, chap. 128, § 5. By the Revised Statutes, road commissioners are required to assess the damages sustained by owners of land, as selectmen are required to do. Rev. Stat., chap. 51, § 7. And by chap. 49, § 13, of the Revised Statutes, it is provided that “ selectmen shall assess the damages sustained by each owner of the land required for the highway.” The act of June 23d, 1848, Pamphlet Laws, chap. 621, changes the law only so far as to provide that the railroad commissioners, in conjunction with the selectmen of the towns wherein the land lies, shall assess the damages instead of the county-commissioners. The right of appeal and trial by jury, in cases of lands taken for railroad purposes, is given by the fifth section of the act of December, 1844, in the same manner as it is given in cases of lands taken for highways by the eighth section of chapter 51 of the Revised Statutes. After appeal, the jury are to assess the damages sustained by the land owner, instead of the road commissioners and the other officers in conjunction with them. The damages, then, which are to be found by a jury on the trial of a case like the one before us, are to be the same which selectmen would assess in a case of taking land for a highway. "What such damages shall be, is not specifically pointed out, either by statute or by any reported case from our courts. Still they are believed to be generally pretty well understood through the community. As the lands are taken for the public use and convenience, individuals must be fully reimbursed, not only for the actual value of the land taken, but for all the “ damages sustained” — 186 — by reason of taking it. A highway may pass through a piece of waste or common land, far removed from any settlement, and of very little value to any one. Or it may go directly through a small, highly cultivated field, which is the chief reliance of the owner for his support. It may pass over a valuable garden, or through an orchard of choice fruit. It may cut off entirely all the water in a large pasture. It may inconveniently separate an individual’s out-buildings, from his house, and may pass directly over his well. All these, and numerous other matters may occur, and go to make up “ the damages sustained,” and should be taken into consideration by the selectmen in awarding damages ; for the owners of lands should have due recompense allowed them. Pritchard v. Atkinson, 3 N. H. Rep. 335. Highways, when rightfully laid out, are to be considered as purchased by the public of him who owned the soil, and by the purchase the right is acquired of doing everything with the soil over which the passage goes, which may render it safe and convenient; and he who sells may claim damages, not only on account of the value of the land taken, but for the diminution of the value of the adjoining lots, calculating upon the future probable reduction or elevation of a street or road ; and all this is a proper subject for the inquiry of those who are authorized to lay out, or for a jury when brought before them. Callender v. Marsh, 1 Pick. Rep. 432, per Parker, C. J. He whose land is taken for a railroad is to be equally protected. He is to receive all that equity and justice require, when the nature and extent of the property and rights to be affected, are considered. The corporation acquire the right to construct their road in any suitable and proper manner, for their own convenience and the public accommodation, and the right to vary and change that construction, within the established limits of the road, from time to time, forever, until the State resume the right and privilege of the corporation, or until the charter be altered, repealed or annulled. Accordingly, the commissioners or jury should take into consideration and appraise all damages, direct and consequential, present and prospective, certain and con — 187 — tingent, which may be judged by them fairly to result to the land owner by the loss of his property and rights, and the injuries done thereto. All the language of the general railroad act of December, 1844, shows this to be the case. And such we understand to be the doctrine in Pennsylvania. Pennsylvania Rail Road v. Heister, McClure and, Reiley, 8 Barr’s Rep. 445. And for any loss or injury which results from building the road in a suitable and proper manner, the land owner can maintain no action against the company ; the whole matter is concluded by the award of the commissioners or the verdict of the jury on appeal; for where the legislature authorizes an act, the necessary consequence of which is to damage the property of another, and at the same time prescribes the particular mode in which the damage shall be ascertained and compensated, he who does the act cannot be liable as a wrong doer. Woods v. The Nashua Man. Co., 4 N. H. Rep. 527; Lebanon v. Olcott, 1 N. H. Rep. 339; Stevens v. Middlesex Canal, 12 Mass. Rep. 466; Wolcott Woolen Manf. Co. v. Upham, 5 Pick. Rep. 292. The damages awarded by the commissioners must be regarded as a full compensation for all the injury which the land owner may sustain, then or at any future time, from any cause which the commissioners were bound, or had a right to consider; so that it can never afterwards be made a question whether, in fact, the commissioners have or have not considered any particular cause of damage legitimate for their consideration. It must be taken that they have done their duty in considering all such causes, and that the party who has acquiesced in their decision, without appeal, is satisfied that they have done so. Or in case of a submission to a jury, it must be understood that they have been governed by the same principles. But in granting the power to the railroad to take the land and make the road, no authority is given to make it in an unsuitable and improper manner; and hence the corporation must remain liable for all such damages as result from an improper and unsuitable construction. It will at times, perhaps, be a difficult matter to decide whether the road is built in a suitable manner — 188 — or not, but of this the proper tribunal must judge; nor do we see that the question presents more difficulties than are frequently attendant upon other kinds of litigation. Ordinarily the damages are settled either by the commissioners or the jury before the road is built; and they are decided upon the assumption that the road will be made in a suitable and proper manner; but in this case, before the trial was had, the road was made and the jury had a view of the premises. And when a road has already been built, the jury must necessarily decide whether it has been done in a proper and suitable manner or not. Upon the principles which we have endeavored to state as governing proceedings of this kind, we can discover no error in the instructions given to the jury. The corporation was liable for the damages sustained by reason of building the road in a suitable and proper manner, and instead of anticipating the manner in which it would be built, as is usually the case, the jury had the advantage of examining for themselves, and seeing the actual operation and effect it had upon the appellant’s property. And although the damages were to be assessed as of the day when the commissioners made their appraisal, yet the jury were the better enabled to do it by the light which they had, than they would have been before the road was made. In the one case they settle the matter from a supposed state of facts, and in the other from actual facts before them, of which they are the proper judges. This question has heretofore been before this court, in Rockingham county, in the case of March v. The Portsmouth and Concord Rail Road, and it is understood that the instructions given to the jury in the present case were precisely the same as those given in that action, and which were held to be correct. But there is still another question raised in this case, and that is, whether a stockholder of a railroad corporation which has adopted the act of December, 1844, rendering railroad corporations public in certain cases, is a competent witness for the corporation, independent of selling out his stock. — 189 — By the Revised Statutes, chap. 188, § 12, it is enacted, that inhabitants of towns, and members of public corporations, and members of mutual insurance corporations, shall be competent witnesses, in cases affecting the interests of such corporations. This act took effect in March, 1843. By the act of December 25th, 1844, chap. 128, § 3, of the Pamphlet Laws, entitled “ an act to render railroad corporations public in certain cases,” it is provided, that all railroad corporations which now are or shall hereafter be chartered by the authority of this State, and which shall be unable to purchase the lands for their roads of the owners on their respective routes, at rates to be agreed upon by the parties, are hereby made and declared to be public corporations. To this section is attached a proviso; and the section is then amended by the act of December 29th, 1848, chap. 709, Pamphlet Laws, requiring a copy of the record of the vote of the corporation adopting the act of 1844 to be filed in the office of the Secretary of State. This copy, it is admitted, was filed according to law, so that the question presented is, whether by virtue of the provisions of these several statutes a stockholder of the railroad can be a competent witness for the road. In order to constitute a stockholder a legal witness for the corporation, we must hold that a railroad is a public corporation within the meaning and intent of that section of the Revised Statutes which we have quoted. At the time of the passage of the Revised Statutes, the general understanding of the meaning of a public corporation, as recognized by our reports, was one which was created for public purposes and for those only; and all of whose franchises were exercised for public purposes, and whose property belonged to the public; such as counties, towns, parishes, and school districts. Individuals had no private interest in them, such as could be released or conveyed to another. Private corporations were those which were created for the immediate benefit and advantage of individuals. Each stockholder in them had an interest that could be bought and sold, and which could be seized on execution. Canals, turnpike roads and bridges, banks and — 190 — manufacturing companies were of this character. Dartmouth College v. Woodward, 1 N. H. Rep. 116; Eustis v. Parker, 1 N. H. Rep. 273; School District v. Blaisdell, 6 N. H. Rep. 197. Under these decisions, railroad corporations, at the time of the passage of the Revised Statutes, would no doubt have been held to be private corporations, and their stockholders incompetent witnesses for the corporations. But by the act of 1844, railroad, companies have, under certain circumstances, been declared to be public corporations. The chief design of that act, however, was not to take away the property of the individual stockholders and confer it upon the public, and make the road belong to the public, but to obviate the constitutional objection against taking private property for private purposes ; and it appears to us quite clear that the act cannot have the effect to make railroad companies public in their character to the' extent contemplated by the Revised Statutes, so as legitimately to fall within the meaning of public corporations, as there intended. Their property and franchises are capable of sale, and transfer, and attachment; and they are as much private corporations, so far as the interests of the stockholders are concerned, as turnpike roads. The act of 1844 gives a signification to the term “ public corporation,” which did not exist at the time of the passage of the Revised Statutes; aud we think the term as used in the Revised Statutes cannot be made to apply to railroad corporations. Stockholders, then, are not competent witnesses for the corporations. In determining the question of the interest of a witness, the usual practieeris for the court to decide the matter before proceeding to the examination of the witness upon the merits. But the court have the power in their discretion, in a doubtful case, to submit the question of interest to the jury. Judgment on the verdict. Footnotes [*] Perley, J. having been of counsel, did not sit.