Deering v. York & Cumberland Rail Road , 31 Me. 172 ( 1850 )

Wells, J.

The plaintiff, by his bill in equity, charges the defendants with having committed waste upon his lands, and the doing of certain acts upon the same, which are denominated in the bill a nuisance to him. He also prays for an injunction to restrain the defendants from doing any further acts upon his premises, by virtue of their charter. The injunction is asked for at the present time without a hearing upon the general merits of the bill, and the defendants, without making an answer to the bill, admit for the purposes of the hearing, in relation to the injunction, that the facts stated in the bill are true.

It is contended by the plaintiff that if the act incorporating the defendants, allows them to take and use his land, before compensation is made to him, that then the act is so far unconstitutional and void.

It is quite manifest that the act, by a fair construction of its language, does authorise the taking and using of the land, before comp'ensation is made, and in case the parties cannot agree upon the damages, they are to be determined by the county commissioners, in the same manner and under the same conditions and limitations, as are by law provided in the case of damages by the laying out of highways. The statute, chap. 81, sect. 6, when real estate is taken by a rail road corporation, directs the commissioners, upon the request of the owner of such real estate, to require the rail road corporation to give security to the satisfaction of the commissioners, for the payment of damages and costs, which may be awarded by jury or otherwise, and it further provides that the authority of the corporation to enter upon or use such real estate, except for making surveys, shall be suspended until the security is given. And the charter of the defendants confers upon them all the rights, and subjects them to all the liabilities, provided in chap. 81, before mentioned, not inconsistent with the provisions of the charter. Any party aggrieved by the doings of the commissioners, in estimating damages, may have a jury to determine the matter of his complaint, agreeably to chap. 25, sect. 8.

By the charter and the provisions of the statute, the defendants may continue to use the real estate taken, by giving the required security.

By the constitution of this State, it is provided, art. 1, sect. 21, that “ private property shall not be taken for public uses, without just compensation; nor unless the public exigencies require it.”

The constitution does not prescribe that the compensation shall be made before the property is taken, nor when it shall be made.

In times of war and civil commotions, the government may need the property of its citizens for public uses, when the exigency is so pressing, that there is neither opportunity nor means for making compensation at the time when it is taken.

Lands are required for highways, turnpikes, canals and ferries, and the acts authorizing them to be taken have uniformly, so far as they have come to our notice, provided for compensation subsequently to be made.

But it is conceded, that in cases where the owner of the land has a claim upon a town or comity for his damages, that there is then such a degree of certainty as will ensure the eventual payment, and that it would not be in violation of the constitution to allow the property to be taken where a public corporation would be liable for the compensation subsequently to be made.

But even in those cases, the compensation would not be absolutely certain, for governments are subject to revolutions, and they may fail of making payment. As all future earthly events are doubtful, if the payment provided, though not absolutely certain, may still be constitutional, can any thing more be required than a reasonable certainty of it ?

The law does not prescribe the kind of security with which the commissioners may be satisfied. They may require a deposit of public stocks and securities of a town, city, State or of the United States. But they may require security of a less satisfactory character, and it may entirely fail and the owner be subject to great injury, though not to the ultimate loss of his land.

This is strictly a constitutional question of great magnitude, not only ■ affecting the plaintiff but having an important bearing upon the interests of others. Before the injunction can be granted, we must decide the act incorporating the defendants to be unconstitutional and void. And this decision we are called upon to make, upon a mere interlocutory proceeding, without sufficient opportunity for examination and deliberation.

In the case of Moor v. Veazie, the plaintiff asked for an injunction on the ground, that the charter under which he acted was constitutional, and it was presumed to be so, so far as to authorize a temporary injunction. There the charter was claimed to be valid, here invalid. There we could grant what was asked, assuming the act to be in accordance with the constitution, here we cannot do it, without deciding the act to be in opposition to the constitution.

As we assumed in that case the constitutionality of the legislative act, so we must in this, so far as relates to the application for an injunction at the present time. The same rule, which authorized it to be- . granted in that case, requires in this, that it should be refused. We base our conclusion upon the rule, that an act of the Legislature ought not to be decided to be unconstitutional upon a preliminary hearing of this nature, before an examination of the general merits of the bill.

We therefore decline at present'from expressing any opinion in relation to the validity of the defendants’ charter. We have stated enough to show what the question is, and that it is one requiring very great consideration, and the most careful and attentive investigation. It. must take the ordinary course of judicial proceedings, and will be, decided, if the nature of the case requires it, upon the final disposition of the plaintiff’s bill. The injunction is denied.