Curtis v. City of Portland , 60 Me. 55 ( 1872 )

Danforth, J.

In 1870, tbe city of Portland laid out a street across the petitioners’ land, for which no damages were allowed. From that adjudication as to damages this appeal was taken. After this appeal the city discontinued a portion of that street. Shall the appellants have their damages assessed in this process for the street as originally located, or for that part not discontinued ?

This state of facts does not seem to have been contemplated by the legislature, in the act of 1863, c. 275, § 9, under which the respondents justify, and yet certain legal rights result to the parties therefrom.

There is here no question of the recovery of damage^ but as to the basis upon which they shall be assessed. There is no judgment for damages in favor of the appellants, nor anything tantamount thereto. If there had been such an adjudication, the appeal would have suspended its effect until a final disposition of it. If there had been a final adjudication as to damages, and a subsequent discontinuance of a part of the road before the payment of the amount, it is very possible the land-owner might recover the full sum assessed, as no provision is made in the law for apportioning the damages between the different parts of the street. But upon this question we give no opinion. On what ground shall the damages be assessed under the facts developed in this case? The statute referred to gives the city of Portland exclusive authority to ‘ lay out, widen, or otherwise alter or discontinue any and all streets,’ etc. Under this statute there can be no doubt that the city had full authority to discontinue any part of any street at any time after its location. "We must, therefore, deem the discontinuance of a portion of the street in question, as legal, until quashed on certiorari. This discontinuance has no effect upon the remainder of the way. The result is, that a part of the original location upon the appellants’ land is still a legal street, while the other part is not, and the city or the public have no rights therein. Further, the discontinuance was accomplished before the damages were paid or recovered, while the original adjudication, as to damages, remains the same. From this adjudication this appeal was taken, and, if prosecuted, the jury or committee will examine the road as they find it. They have no authority to estimate damages for a way which has no existence in law or fact, but only for that which does exist. Then the state of things has been somewhat changed since the appeal was taken. But this change is one which the respondents had a legal right to make, and to which the petitioners are legally bound to submit. Nor does it work injustice to them. They may, under the law, if they choose to submit to the original adjudication as to damages, withdraw their appeal with costs, or they may pursue it and recover such damages as they are entitled to for the street as now located; and if they are aggrieved at the damages allowed for the discontinuance, they may appeal from that and recover for all injuries, including that arising from the original location. These two processes are sufficient to secure the payment' for all damages sustained. But if the claim of the appellants is allowed, to some extent double damages will be recovered, once under each appeal.

The result is, the appellants may, if they choose, abandon their appeal with costs, or pursue it and have the damages assessed for the location of the street as it now is.

Appleton, C. J.; Cutting, Walton, and Dickerson, JJ., concurred.