Conant , 83 Me. 42 ( 1890 )

Emery, J.

By E. S., c. 18, § 11, (the chapter on ways) when the true boundaries of a duly located highway become uncertain, &c., the county commissioners, upon petition of the municipal officers of the town, and upon specified notice, are to hear the matter, and to locate and define the limits and boundaries of the highway within the town, and erect durable monuments ; and if any real estate is damaged by such action, they "shall award damages to the owner as in laying out new highways.” The statute says nothing more about an appeal in such cases.

The appellant does not question the regularity of the proceedings in this case, — that they were according to the statute. She claims, however, that her real estate was damaged by this action of the comity commissioners, and that they did not award her sufficient damages therefor. Upon this question of damages only, she claims an appeal to this court, being content to abide the action of the commissioners in other respects. The county objects to the appeal being entertained, placing its objection on the ground that the statute does not provide for an appeal.

The question presented is, whether the legislature by the language of this statute, intended that the owner of land injured by such proceedings should abide by the judgment of the county commissioners, as to the amount of his injury, without right of appeal. We do not think it did. -

The legislature expressly declared, that if any real estate was damaged by such action of the commissioners, damages should be awarded to the owner. Assuming the injury such as would entitle the sufferer to compensation under the legal principles governing such cases, the legislature declared that compensation should be made in these cases, as well as in those where a new way was located. It would be unreasonable to assume, in the absence of express words, that the legislature intended to deprive the land owner of the usual facilities for obtaining full and just compensation.

Whether the public exigency requires the damage to be done for the public good, is often left to be determined by a special, limited tribunal without appeal. Banks, app’lt, 29 Maine, 288; Freeman v. Co. Com’rs, 74 Maine, 326. As just compensation is to be paid him for the injury, it can not matter much to the citizen what tribunal shall finally adjudicate upon the necessity of the damage. But it does matter greatly to the citizen, what tribunal shall finally conclude him upon the amount of his compensation. The Bill of Bights declares that in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it had theretofore been otherwise practised. This right should be recognized in all such controversies between the citizen and the government. The spirit of legislation upon the subject has always been in harmony with this principle, and, whatever the omission of words in this statute, we should be slow to infer any intention to violate the principle.

Our.conclusion is, that in providing for an award of damages "as in laying out new highways,” the legislature intended that the citizen should have the same right of appeal, as in cases of laying out new highways ; and hence that this appeal should be entertained. The refusal to dismiss was correct.

Whether the damage is such as entitles the appellant to any compensation, is of course another question.

Exceptions overruled.

Peters, C. J., Walton, Virgin, Foster and Hasicell, JJ., concurred.