Davis v. Russell , 47 Me. 443 ( 1859 )

The opinion of the Court was drawn up by

Davis, J.

This is an action of trespass quare clausum fregit. The defendant justifies as servant of the Androscoggin Railroad Company. The writ is dated September 9th, 1858. The railroad was located June 13th, 1856.

Where land is taken by a railroad corporation, under the provisions of their charter, they have a reasonable time to make compensation to the owner. And, though they enter into immediate occupation, they are not trespassers, unless guilty of unreasonable delay in making payment to the owner. Cushman v. Smith, 34 Maine, 247.

There are various provisions of statute, enacted at different periods, designed, not to supersede or abridge tbe remedies which the owners of lands so taken had at common law, but to provide remedies more speedy and certain.

As soon as a railroad is located, the corporation have the right to take possession. If they do not agree upon the damages with any owner of land taken by them, such owner, at any time within three years, may apply to the county commissioners to estimate the damages sustained by him- And the commissioners, if requested by the owner, shall require such corporation to give security for the payment of all such damages and costs. Thereupon the right of the corporation to enter upon such land, except for making surveys, is “ suspended,” until such security is given. And when the proceedings are closed, payment must be made to the owner within thirty days after it is demanded. R. S., 1841, c. 81; Stat., 1853, c. 41; R. S., 1851, c. 51.

Although these statute provisions are designed to furnish the owners of lands so taken for public use with cumulative remedies, and not to take away such as they had before, they have an important bearing upon the question of unreasonable delay, or negligence, on the part of the corporation. The owner of the land has three years within which to pursue his remedies under the statutes. If the agents of the corporation are unable to agree with him, it is for him, and not for them, to apply to the county commissioners. The statutes plainly imply that, by such application alone, shall the right of the corporation to enter upon the land be “ suspended.” Until then, at any time within the three years, whatever other liabilities may rest upon the corporation, or upon their agents, they are not liable in trespass.

The plaintiif in this case did not resort to the remedies provided by the statutes. And, as the three years from the date of the location had not expired when the suit was commenced, the action was prematurely brought. According to the agreement of the parties, a nonsuit must he entered.

Tenney, C. J., and Rice, Appleton, Goodenow, and Kent, JJ., concurred.