Roberts v. Claremont Railway & Lighting Co. , 73 N.H. 121 ( 1904 )

Whether by appropriate proceedings under the power of eminent domain the defendant may acquire the plaintiff's riparian water rights, is a question which is not properly raised and which it is unnecessary and inexpedient to determine under the present state of facts. If it is competent for the defendant by legal process to dispossess the plaintiff of his property, it has not done so. It has not paid or tendered to him the damages for such proposed dispossession — an essential prerequisite, in such cases, to the compulsory acquisition of private property for public or quasi-public purposes. Littleton v. Company, ante, p. 11; Strickford v. Railroad, ante, p. 81; Ash v. Cummings, 50 N.H. 591. Nor does the case disclose facts showing that the plaintiff has waived his right to insist upon such prepayment. He is, therefore, entitled to protection in the enjoyment of his riparian rights (P. S., c. 205, s. 3) which the defendant has illegally invaded. Upon the issue thus presented by the case, the question whether the joint board of railroad commissioners and the selectmen have jurisdiction to determine the plaintiff's damages in condemnation proceedings is immaterial and is not considered.

The plaintiff is entitled to recover in this proceeding compensatory damages. The beneficial uses for which the water-power was adapted, in view of its extent, location, and availability, might be evidence of great or little weight upon that question. But in advance of the trial, and in the absence of many evidentiary facts affecting its value, it would manifestly be injudicious to decade explicitly the question of law relating to the damages, suggested by the case.

Whether the injunction should be stayed during the pendency of the hearing before the joint board, is a question to be determined by the superior court, in view of all the circumstances.

Case discharged.

All concurred.