Bangor & Piscataquis Railroad v. McComb , 60 Me. 290 ( 1872 )

Kent, J.

The questions presented for our determination in this case arise from exceptions to the rulings of the presiding officer, at a hearing before a sheriff’s jury, impanelled at the request of the petitioners. There is also a motion to set aside the verdict on the ground of excessive damages, and exceptions to the ruling of the judge of this court in refusing to hear certain testimony offered under that motion.

The first and principal question of law relates to the rule of damages given to the jury, touching the various aspects of the case. It is conceded that the respondent’s land was taken, to be used for the track of the railroad. It is a case where private property has been taken for public uses, without the consent of the owner, because the public exigencies required such taking.

This exercise of the right of eminent domain is, in. its nature, in derogation of the great and fundamental principle of all constitutional governments, which secures to every individual the right to acquire, possess, and defend property. As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch-of his estate. The constitution protects him and his possessions, when held on, even to the extent of churlish obstinacy.

It is only when the sovereign power declares that a public exigency, to carry out a public purpose, requires that the individual right to possess must yield to the higher demands of the sovereign power, that private property can be taken without consent. And even this right to take is not affirmatively given in the bill of rights, but is necessarily inferred. The section first gives an emphatic protection to private property, even against the public and the sovereign, — ‘private property shall not be taken.’ It then qualifies this absolute negation, by excepting the cases where a public purpose and a public exigency concur in requiring or justifying the exercise of the right of eminent domain.

But can this right be exercised absolutely, tyrannically, and without care for the rights of the owner ? Can the public say, we need your property and therefore we take it, and you must submit to be a victim for the public good, and yield your property for the common benefit? The constitution asserts no such right. No government, short of the most absolute tyranny, ever did, or ever can, maintain or tolerate such a doctrine.

The third and most expressive condition is, that private property shall not be thus taken ‘ without just compensation.’ It is with this provision that we have to deal in this case. But in considering the extent and meaning of this clause it is important to regard the whole provision. We are not to forget that the property has been taken without consent of the owner; that the act overrides the fundamental right of every man to possess, manage, and defend his property, and that it is enough thus to seize his estate without making him a pecuniaiy sufferer.

The words selected are significant, — ‘just compensation.’ These words cover more than the mere value of the quantity taken, measured by rods or acres. They intend nothing less than to save the owner from suffering in his property or estate, by reason of this setting aside of his right of property, — as far as compensation in money can go, — under the rules of law applicable to such cases.

In some cases it is very easy to apply those rules. If it is clear that all of a lot of land, shown to have been worth two thousand dollars, was taken, then that sum would be the extent of the damage. If personal property is taken from the possession of the owner and converted to the use of the public, the value of the thing taken, at^tlie time of the taking, would be the just compensation required. If a man’s horse is taken and it goes from his possession, he has no longer any connection with the subsequent use or appropriation of the property. It can no longer affect him in the use or value of his remaining property.

But not so with land, unless the whole lot is taken. The land remains unmoved, and in various ways the taking of a part may injure the former owner beyond the mere value of so much land.

The effect of the location of the part taken, upon the remaining portion, may be such as to render it of very little value. It may leave only small gores, or parts incapable of profitable use. Or it may disfigure the lot, so that it would be worth but little, although the extent of the part remaining might be greater than of the part taken. Another, and often a more serious injuiy, is in the use to which the land taken is to be appropriated. If for a common highway, the use might be much less injury to the remaining land, than if for a railroad. There are various considerations, applicable to different eases, and to the situation of different lots, which may properly be regarded in determining the just compensation to the owner. The constitutional provision cannot be carried out, in its letter and spirit, by anything short of a just compensation for all the direct damages to the owner of the lot, confined to that lot, occasioned by the taking of his land. The paramount law intends that such owner, so far as that lot is in question, shall be put in as good a condition, pecuniarily, by a just compensation, as he would have been in if that lot of land had remained entire, as his own property. How much less is that lot, and its erections thereon remaining, worth to the owner, as property to be used or leased or sold the day after the part was taken, to be used for the purpose designed, than the whole lot intact was the day before such taking ?

There must be, however, a limit, w'hicli will exclude remote, indefinite, or possible damages. The damages must be direct, not such as are general or common to others or to the whole community. They must be such as it may be fairly anticipated will result from the taking of the land, in the form, direction, and use of the track or road taken to the remaining part, and to the erections thereon.

Although it might be difficult to exclude from the enlarged idea of a ‘just compensation,’ some of those damages which are termed indirect, yet thé difficulty of estimating them, and the almost unlimited range which such a discussion must take, and the impossibility of justly giving damages for such indirect, remote, or general injuries, when one man’s land is taken, and refusing them to his neighbor who may be an equal sufferer in fact, from the proximity of his premises, no part of which is taken for the road, have led to the conclusion that the only practicable rule is, to confine the award to the direct injuries to the lot in question.

On a careful examination of the rulings of the presiding officer on these points, we see no reason to question their fulness or correctness. The jury were told ‘ to allow the value of the land taken, and if the remaining land is less valuable by reason of being severed or by any disfigurement on account of the land taken and the use made of it, they should allow such sum as they find the injury to be. And that in determining whether the remaining land was lessened in value, they should consider the use to which the land taken is to be appropriated, and the character, situation, present and probable use of the lands remaining, the distance of the owner’s buildings from the location of the road, and any other facts, which, from their view and the testimony, they should find injured the land, by the use of the road in a proper and legal manner.’

The jury were instructed to exclude ‘ merely speculative or conjectural damages, and that they must assume that the corporation will perform its obligations and operate their road in conformity with the requirements of law. The direct depreciation of this land in consequence of the location of the road over it, is to constitute your measure of damages.’

The corporation requested the instruction, that the jury ‘ are not authorized to assess any damages for all inconvenience arising from the sounding of whistles, the ringing of bells, the rattling of trains, the jarring of the ground and for smoke, which are common to all the inhabitants and proprietors along the line of the railroad.’

The presiding officer instructed the jury that the inconveniences named in the request, to constitute elements of damage in this case, must be the result of the location of the road over the premises in question. That the whistling, ringing of bells, and other matters named, at a distance, and which constituted a common annoyance were not to be considered.

We understand that the fair meaning of this instruction is, that these matters off of the premises in question, at any distance therefrom, must be excluded from consideration. But the jury might consider them, when arising from the use of the land taken, and on that land.

No one can seriously question that many, if not all, the matters specified in the request may be specially annoying to the owner in the use of his property. The track may be so near his house that smoke may enter it every time the engine passes. His house may be at the exact distance from a crossing, which the law designates as the place where the whistle shall be sounded with its shrill cry. If the jury might properly consider the use to be made of the land, then all the natural, usual, and lawful results from that use may be considered, when restricted to the lot itself. A common nuisance, which annoys the whole neighborhood, may also be a private and special nuisance to an individual, beyond that endured by the public.

We see no ground to except to this instruction, qualified as it was in the giving, and also qualified by a reference to the former part of the charge, by which all common and indirect damages were excluded.

There was another instruction, which it is contended more strenuously and confidently, was erroneous.

The instruction was, that if the jury find that the real value of the remaining land, and buildings and erections thereon, is actually lessened by exposure to fire from the company’s locomotives, taking into consideration at the same time, that if a fire does occur, that the company must pay the damage, you may assess such sum as will be a just compensation for such lessened value.

The presiding officer had, before giving this rule of damage, stated to the jury, that by the existing law of this State the corporation was absolutely liable for all injury occasioned to property of others by fire, communicated by a locomotive engine, in use by the company.

In fact and substance the company is an insurer against such injury, and bound to repair, restore, or pay the amount of such injury so occasioned.

It is not questioned seriously, that independent of this statute, the danger from fire from the use of locomotives, over the land taken, would be a proper subject for consideration by the jury in estimating the damages. But it is contended that the liability of the corporation, before stated, covers all the ground, and that there can be no appreciable damage beyond this insurance.

It must be confessed that, at first view, this position seems reasonable and tenable. But a little consideration of the elements which go to make up the just estimate will show that there are reasonable grounds on which the ruling may be sustained. The rule contended for is simply the increased cost of insurance as the only allowable damage. If before, the buildings could be insured for one per cent per annum, and after the location two per cent would be demanded, then the additional premium would be the exact injury, in this particular. But we are to remember that the question is, how much is the lot and property injured, depreciated, as property to be used, leased, or sold. The actual injury, in these particulars, is to be settled at once and for all time. The right to call upon the company to restore the building, if burned, or to pay its value, may, it is true, go far to protect the owner from pecuniary loss. But are there not other evils, other depreciating effects from a constant and imminent danger of fire, causing not merely mental anxiety, but constant watching and loss of time.

There may be cases where property which before could be leased for a large rent, to responsible tenants, would be left unoccupied by such tenants, if daily and nightly in danger of being set on fire by locomotive engines. And the same effect would follow, if offered for sale. In such cases the mere liability to pay the actual physical damage to the property would not be a just compensation. It would not cover the actual depreciation of the property occasioned by this liability to fire. There may be cases where perhaps this insurance would, in the sound judgment of a jury, be a sufficient protection. But the question is, whether there may not be cases where the rule given in this case is the proper one.

To illustrate further. If the sovereign power should determine that the public exigency required the erection, by the State, of works for the manufacture of gunpowder, and should designate a comfnission to select a site, and take the same under the right of eminent domain, a just compensation to be paid to the owner, and with the express provision that if any injury should be done to any of the buildings or erections on the remaining part of the lot, by an explosion of gunpowder there manufactured or in' any stage of manufacture, the injury done to such property should be repaired or paid for by the State, would this provision be regarded by any impartial tribunal as excluding from consideration, in determining what should be a just compensation to the owner, the constant and imminent danger of an explosion ? The prospective right of repair would hardly induce an owner or his tenant to live contentedly and with a feeling of security, with this hourly fear of an explosion.

The jury were instructed to start in this matter of danger from fire, with the established fact that if a fire does occur, from the use of locomotive engines, the company are liable for the damages actually done to the buildings. With this admitted, we see no objection to the rule given by the presiding officer.

The court in Massachusetts, in the recent case of Pierce v. W. & N. R. R., 105 Mass. 199, recognize the correctness of the ruling of the presiding officer in this case. He instructed the jury clearly and distinctly, that they could not estimate or allow anything equivalent to insurance against actual damage or destruction by fire, occasioned by a locomotive engine of the company.

There remain for consideration the exceptions to .the rulings of the judge of this court, at the hearing on the motion to set aside the verdict of the jury, and for a new trial.

As we gather the facts from the somewhat complex and confused statement of them, these proceedings originated in a petition by the railroad company for a diminution of damages, allowed by the county commissioners. The verdict of the jury was returned into court, and thereupon the company moved to set it aside and for a new trial. The presiding judge ruled that he would not hear witnesses, whose testimony might affect the questions before him, if such witnesses were known to the petitioners, and obtainable by them at the trial before the jury, or which by ordinary diligence might have been known to them and had by them at the trial.

In thus ruling the judge only followed well-settled rules of practice in this court, which are reasonable and require no words in defense.

The motion for a new trial was overruled, but it is added that this pro forma ruling is not to affect the rights of the parties to be heard upon that question before the full court.

It is not necessary for us to say more than if that motion is properly before us, we can find no ground to sustain it, on the facts reported. The chief, if not the whole evidence touching the matter of damages was derived from the view of the premises. The parties agreed to submit the case to the jury on this view. We, of course, cannot have the benefit of this kind of evidence.

The jury were instructed to allow interest on the damages found, after the time when the land was taken by the corporation. We see no legal objection to this rule. The respondent’s land was taken from him and his compensation has been detained from him by the acts and proceedings of the corporation. Reed v. Hanover B. Railroad, 105 Mass. 303. The result is, that

All the exceptions before us are overruled. Motion overruled. Judgment to be rendered on the accepted verdict of the jury.

Appleton, C. J.; Cutting, Walton, Barrows, and Tapley, JJ., concurred.