Lime Rock Railroad v. Farnsworth , 86 Me. 127 ( 1893 )

Emery, J.

There is a tract of land in Rockland with a divided ownership. Lucy C. Farnsworth owns "all the marble or lime rock ” within the tract. A third party, whose name is not stated, owns all the rest of the tract. The Lime Rock Railroad Company "for the location, construction, repair and convenient use of its road ” has assumed to take and hold as for public uses out of this tract, a strip of "land and all materials in and upon it,” in accordance with R. S., c. 51, § 14. The railroad company, so far, has not actually taken or used any marble or limerock out of the land, and it is not known that there is any such material within the land.

The railroad company has settled with the third party for all damages caused him by such taking, and now, according to R. S., c. 51, § 19, has filed its petition for the ascertainment of the damages caused Mrs. Farnsworth by the same taking. Mrs. Farnsworth has moved for the dismissal of the petition. She-contends that the court cannot take cognizance of the petition for reasons substantially as follows: 1st, that the railroad! company has not assumed to take as for public uses, or in anyway to appropriate, her "marble or limerock,” nor indeed to take any of her interest- in any land. 2d, that the statute does; not authorize the taking of marble or limerock for railroad purposes.

The railroad company was by statute authorized to take the-particular strip of land it assumed to take, no matter who owned, it, nor how minutely its ownership -was subdivided. The statute (R. S., c. 51, § 14) does not mention estates, titles or interests-in real estate, as subjects for condemnation. It speaks solely of " land and all materials in and upon it.” It means not personal-interests in lands, but the land itself, the res. The process of taking the land in the first instance is not against persons having: estates or interests in the land. They are not summoned to» show cause against the taking. There is no occasion for the* company to consider the ownership, or divisions of ownership; until the beginning of the subsequent proceedings for the estimation and payment of damages. Up to this point the railroad; company has to deal with the land only.

The term "land ” in this statute evidently has its comprehensive common law signification, including "not only the face of the-earth but everything under it or over it,” (2 Bl. Com. 18,) at least so far as necessary for the location, construction, repair, and convenient use of the railroad. R. S., c. 1, § 6, cl. X; State v. Railroad Commissioners, 56 Conn. 308 (15 Atl. Rep. 756) ; Jefferson Gas Co. v. Davis, 147 Pa. St. 130 (23 Atl. Rep. 218). It follows that Mrs. Farnsworth’s interest in this land, her "marble or lime rock” therein, if any, was lawfully taken by the company as for public uses, when it took the land itself.

The company was bound to make just compensation to all the different owners, as soon as it had taken the land under its statute authority. It did not need to delay this compensation until it had entered upon or made some use of the land, or of the materials in and upon it. The petition in this case was not prematurely filed. The company has the right to procure an early adjudication of Mrs. Farnsworth’s damages, if any, even before entering upon the land.

The uncertainty of the existence of any marble or limerock in the land does not bar the petition. There is a possibility of their existence, and hence a possibility that Mrs. Farnsworth has suffered some damage by the taking the land. This possibility the company is entitled to guard against by making seasonable compensation to her.

It is urged that there can be no just estimate of damages under this petition, for the reason that it is physically impossible to determine the existence, or quantity, or quality of any marble úr limerock under the surface of this land. Our remarks upon the elements of the damage, or the mode of assessing them, will be mere dicta, as those questions do not arise at present, but we have been shown no reason why the rules and principles applicable in other cases of assessing damages for taking land, are not applicable in this case. If Mrs. Farnsworth’s interest in the land had no market value just before the taking, she has not suffered any legal damage. If her interest then had a market value, how much was it reduced by the company’s action would seem to be the question. The existence and the depreciation of the market value can be determined in this case by the same kind of evidence as in other cases. This was the mode followed in Pennsylvania in cases similar to this. Reading Co. v. Balthaser, 119 Pa. St. 472 (13 Atl. Rep. 294) ; Penn. Gas Co. v. Versailles Fuel Co. 131 Pa. St. 522 (19 Atl. Rep. 933).

An objection is urged against the form of the petition that it does not state in terms that some " land ” of Mrs. Farnsworth had been taken. The petition describes the land taken, and then describes Mrs. Farnsworth’s interest in the land. This is sufficient.

Motion to dismiss denied. Petition sustained and case remanded for trial.