Kimball v. Kennebec & Portland Rail Road , 35 Me. 255 ( 1853 )

• Shepley, C. J.

— The question presented is, whether a rail road corporation has a right, by way of petition and appeal from a decision,of County Commissioners, to have a jury determine the amount of damages to be paid for lands taken for the road.

■ By the provisions of the statute, c. 81, <§> 3, the damages are to be determined by the County Commissioners “ under the same conditions and limitations as are by law provided in case of damages by laying out highways.” The damages occasioned by laying out highways are to be determined by County Commissioners, and all persons aggrieved by their decision may present a petition and have a jury estimate them. And “ any town or other corporation aggrieved by the estimate of the Commissioners shall be entitled to a similar remedy by a jury.” Ch. 25, <§> 3, 5, 8.

It is insisted, that no town or other corporation can be aggrieved by the assessment of damages for lands taken by laying out highways, unless it owned the lands, for no corporation but a county is liable to pay them, and a county cannot be aggrieved by a decision of its own agents, more especially as those agents, after a jury has decided upon the amount of damages to be paid, may prevent any liability for payment by determining, that the highway shall not be laid out.

Admitting the full force of this argument it will not prove, that a town or other corporation than a county would not be aggrieved, and therefore be entitled to a jury, if it were liable to pay damages for land taken for a highway. If the law requiring counties to pay the damages were repealed and towns, as formerly, were required to pay the damages for lauds taken within them, they might be aggrieved by an over estimate of damages and have the right to a jury to determine, whether that estimate should not be diminished. The fact, that no application has or 'can be sustained under the provisions of the statute, c. 25, for a diminution of damages by laying out highways, because no such corporation by the existing laws can be aggrieved by an over estimate, is not conclusive against the right of a corporation to do it, made liable by c. 81 to pay the damages occasioned by taking land for a rail road, and therefore liable to be aggrieved by an over estimate of damages.

A reference appears to have been .made by the provision in statute c. 81, to that in c. 25, to determine under what circumstances and by what course of proceeding a jury might be had, rather than to determine, who might be considered to be aggrieved.

The constitution having provided, that in all controversies concerning property the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practised, it cannot be supposed, that the Legislature intended by that reference to prevent a rail road, that might be aggrieved, from having an estimate made by a jury, because a corporation, whose land was not taken for a highway and whose property was not liable to be taken for payment of damages and which could not therefore be aggrieved, was not entitled to have such an estimate made.

It was not the purpose of the sixth section of c. 2-5, to determine, that no petition for a diminution of damages should be sustained, but to prescribe the course to be pursued by the Commissioners, when a petition for an increase of damages was presented. That section might remain unaffected, if towns instead of counties were made liable to pay the damages and might therefore be aggrieved and entitled to maintain a petition and have a jury determine, whether the amount assessed by the County Commissioners should not be diminished.

One of the conditions and limitations referred to being, that any party, town or other corporation aggrieved by the estimate of damages made by the Commissioners may by petition be entitled to a jury, it only remains to show, that a rail road corporation has been tiras aggrieved to bring it within the provision.

The failure of the argument against it is found in its inability to show, that a rail road corporation must be in the same position and have the same rights as a county or other corporation, which cannot be aggrieved, when the railroad corporation may be aggrieved. Plaintiff nonsuit.

Wells, Howard, Rice and Hathaway, J. J., concurred.