Strickford v. Boston & Maine Railroad , 73 N.H. 81 ( 1904 )

The defendants contend in support of their demurrer that the railway is lawfully located within the limits of the highway, and that although the plaintiff owns the fee to the center of the highway opposite his lot, the construction of the railway upon it was not the imposition of an additional burden, — the taking of a new easement, — and that the plaintiff is not entitled to damages. The plaintiff, on the other hand, contends that the railway is not lawfully in the highway; that although its location was properly granted, the defendants had no right under the law to appropriate and use the highway for railway purposes without first causing his damages as an abutter to be assessed and paid or tendered to him; and that because of their failure in this regard he is entitled in this action, or by some appropriate procedure, to have his damages ascertained and paid.

In 1895 the legislature enacted a general street railway law (Laws 1895, c. 27), in which it provided (s. 1) that "street railway companies shall have the powers and privileges, and be subject to the duties, liabilities, restrictions, and provisions, contained in this chapter." The defendants' street railway was constructed under the provisions of this act. It is therefore necessary to ascertain what steps the law required the defendants to take to lawfully occupy the highway with their railway. In section 5 of the railway law it is provided that "all parts of street railways occupying any portion of a public highway or street shall be located thereon by the mayor and aldermen of cities or selectmen of towns in which said portions of said highways or streets may be. The board of mayor and aldermen of a city or the selectmen of a town, . . . upon petition of the directors of such railway corporation for a location of its tracks on or over any public highway, . . . shall give notice by publication to all parties interested of the time and place at which they will consider such petition for location in the public highways of said town or city, and after a public hearing of all persons interested they may make an order granting the same, or any portion thereof, under such restrictions and upon such conditions as they may deem the interests of the public require, and the location thus granted shall be deemed to be the true location of the tracks of the railway. . . . The boards of mayor and aldermen of cities and selectmen of towns shall assess damages to abutters, subject to the right of appeal, in the same manner as now provided by law in the laying out of highways."

The highway law referred to in section 5 requires the selectmen in towns and the corresponding municipal authority in cities to assess the damages sustained by owners of land taken for highways, to insert them in their return laying out the way, and to cause their return to be recorded by the town clerk (P. S., c. 67, ss. 17, 18), and further provides that "no land . . . taken for a highway shall be appropriated or used for making the same until the damages assessed therefor are paid or tendered," except in certain cases not necessary to be here mentioned. P. S., c. 71, s. 4.

It is apparent that section 5, read in the light of the above provisions of the highway law, requires that a railway corporation, in applying for a location in a highway, should procure an assessment of the damages caused abutting owners; that an assessment and payment or tender of the damages are conditions precedent to its right to occupy the highway for the construction and operation of its railway, and that a failure to comply with these prerequisites, in the absence of a waiver by the abutters, renders its occupancy of the highway unlawful. Manchester Keene R. R. v. Keene, 62 N.H. 81, 121, 122; Lyman's Bridge Co. v. Lebanon, 59 N.H. 196; Smart v. Railroad, 20 N.H. 233; Rossiter v. Russell, 18 N.H. 73. But these requirements may be waived by the abutter, as they are for his benefit. Manchester Keene R. R. v. Keene, supra, 121, 122; Uncanoonuck Road Co. v. Orr, 67 N.H. 541.

The plaintiff, as an abutter, had it in his power to prevent the appropriation and use of the highway by the defendants for railway purposes until his damages were assessed and paid or tendered, and it was his duty to insist on his legal rights if he intended to claim that the defendants' conduct was illegal. Instead of so doing, he stood by until long after the railway was constructed and put in operation, without objecting, and does not now object to the defendants' occupancy of the highway, provided he can have the damages to which he may be entitled ascertained and paid to him. The assessment and prepayment of the plaintiff's damages may therefore be properly considered as waived, and the defendants' occupancy of the highway in front of his premises as lawful. Their occupancy being lawful, and there being no claim that the railway was not constructed in a suitable and proper manner, the present action cannot be maintained. Lebanon v. Olcott,1 N.H. 339; Troy v. Railroad, 23 N.H. 83; Henniker v. Railroad,29 N.H. 146, 152; Boston Belting Co. v. Boston, 149 Mass. 44; S.C.,152 Mass. 307. This case differs from Ash v. Cummings,50 N.H. 591, for there the plaintiff had not waived his right to an assessment and payment of damages before his land was flowed.

While the plaintiff's waiver of an assessment and prepayment of damages, and the defendants' construction of their railway in a suitable manner under legislative authority, preclude him from treating them as tort-feasors, it does not deprive him of the right to an assessment and payment of such damages as he may be entitled to under the statute. Manchester Keene R. R. v. Keene, supra. He can avail himself of this right by applying to the selectmen of Hooksett for an assessment. The right to apply is not restricted to the railway corporation. Lebanon v. Olcott,1 N.H. 339, 340, 341, 342, 345.

Whether under the common law the railway would (Craig v. Railroad,39 N.Y. 404; Peck v. Railway, 170 N.Y. 298; Paige v. Railway, 178 N.Y. 102) or would not (Howe v. Railway, 167 Mass. 46, and cases cited there and in170 N. Y. 311, 312) be regarded as imposing an additional servitude upon the fee of the plaintiff in the highway, and if the latter, whether the legislature in enacting section 5, chapter 27, Laws 1895, intended that damages should be awarded an abutter on the same basis as though the railway were an additional servitude (Baker v. Railway, 183 Mass. 178), and, in general, what elements of damage may be considered in a proceeding under the statute, are questions that are immaterial to the decision of this case and are not considered.

Demurrer sustained.

All concurred.