Adden v. White Mts. N. H. Railroad , 1875 N.H. LEXIS 99 ( 1875 )

The rule in regard to the assessment of damages for land taken for a public highway is well settled in this state. Nothing is to be deducted on account of benefits and advantages not peculiar to the owner of the land so taken, but which are general, and shared in by other land-owners in the vicinity. He is entitled to compensation, not only for the land actually taken, but for the damage to the whole tract through which the road passes, — which includes the diminished value of what is left. If the result of the construction of the highway is inevitably to raise the value of all the lands in the neighborhood; he is as much entitled to his share of the general advantages, without compensation, as others whose lands are not taken. To require him to offset such advantage against his damages for the taking of his land, would require him to bear a portion of the expense of the highway which should be borne by the public, and would be manifestly unequal. This rule is correct on principle, and is abundantly supported by authorities. Carpenter v. Landaff, 42 N.H. 218; Petition of Mt. Washington Road Co., 35 N.H. 134. The same rule is also adopted in Massachusetts. Meacham v. Fitchburg Railroad Co., 4 Cush. 291, Upton v. South Reading Branch R. R., 8 Cush. 600; Whitman v. Boston Maine R. R., 3 Allen 133; S.C., 7 ib. 313; — also in other states. Redf. on Railw., 2d ed., *133, sec. ix, § 71, and authorities there cited.

This rule is equally applicable to a railway corporation as to a public highway. Railroad corporations are declared by statute to be public highways. Gen. Stats., ch. 146, secs. 1-3. A turnpike road is a public highway, differing from free roads only in the manner of use. All citizens may use a turnpike by paying the established toll. Backus v. Lebanon,11 N.H. 24, cited by PERLEY, C. J., in Pet. of Mt. Washington Road Co.,35 N.H. 140, where it was held that "the power to take private property for public use may be exercised by the government through the means of a private corporation. The fact that the members have a pecuniary interest, such as will give it in law the character of a private corporation, will not prevent the state from using it to accomplish a public object."

In awarding full indemnity to the owner for land taken from him for public uses by authority of law, several elements are to be taken into the account. The diminished value of what is left is one very important fact. This diminished value may arise from several causes, such as the inconvenient separation of the track, rendering the buildings less commodious, interrupting the supplies of water for cattle or irrigation or household purposes, and the like — Carpenter v. Landaff, ubi supra; to which may be added the nearness of the track to the owner's buildings, the inconveniences caused thereby, and "the imminent and appreciable danger from fire," and the like. Proprietors of Locks, c., v. Nashua Lowell R[.] R., 10 Cush. 385; Redf. on Railw., 2d ed., *155, note 10, and authorities cited.

The law does not afford indemnity for all losses occasioned by the laying out and use of a railroad, especially for such damages as are remote and consequential. They are damages not caused by the taking of the land for the road, but by the change which the public improvement introduces into the course of business. It affords no protection against new competitions, nor against changes introduced by time and the progress of the age — Pet. of Mt. Washington Road Co., 35 N.H. 146, and Proprietors of Locks, c., v. Railroad, 10 Cush. 389; nor does it afford relief against such inconveniences as "the whole community suffer alike, in a greater or less degree, and which are to be borne by the public in consideration of the greater public good to be acquired." Ib., 391. But whatever tends directly and substantially to diminish the value of the tract of land left to the owner, who has been compelled to part with the possession of a portion thereof for the public good, should be weighed and considered in awarding him his damages. That imminent and appreciable danger from fire does so diminish the value of his property, there can be no question.

The defendants' road is located one hundred feet from the plaintiff's dwelling-house. It is unquestionably material for the jury to consider whether his damages are not greater with the tract one hundred feet distant, than they would be at a distance of one hundred rods. The location of the tract, and all such matters as grow out of and are caused by the location, are proper matters for the jury to consider.

It is claimed here by the defendants that the plaintiff is insured by the statute; which in case of loss makes the defendants liable to the plaintiff — Gen. Stats., ch. 148, sec. 8 — and therefore that the element of the enhanced cost of insurance should not be considered in awarding his damages. But I think this does not follow. His buildings may never burn. If they do not, of course the railroad cannot be called on to pay. But is the plaintiff to go without insurance because the railroad is made liable? It is the part of prudence for one to keep well insured. Is the owner compelled to rely on the railroad? Suppose the road happens to be insolvent, as many railroads are: where would be his security? Suppose, in case of loss by fire of his buildings, the railroad contest their liability on the ground that the fire did not originate from their locomotives: it is often not only difficult, but impossible, to prove the origin of a fire. The liability of the railroad extends only to fires caused by their locomotives or engines. Gen. Stats., ch. 148, sec. 8.

It cannot be successfully contended that the owner is not entitled to insurance against fire which may happen from any cause; and if he is unable to obtain such insurance without paying a higher premium therefor because of the increased danger resulting from the proximity of the railroad track to his buildings, that surely must constitute an appreciable and serious detriment to the owner. The rate of insurance being increased operates proportionally to diminish the value of the rent and of the buildings. Redf. on Railw. *155, note 10.

It is no sufficient answer to say the owner might purchase a policy at the usual rate by agreeing to the insertion of a clause exempting the insurance company from liability is case of loss or damage by fire occasioned by the locomotives of the railroad company. To say nothing of the difficulty he might encounter in procuring such a policy, or of the mistakes and misunderstandings that would naturally ensue, it would very likely end in litigation, the railroad on the one hand denying their liability, and the insurance company on the other claiming that the fire originated from the railroad company's engines; and so the owner, in addition to having lost his property by fire, would be placed between two other fires where the result might prove equally disastrous.

By section 10, any insurance effected by the owner enures to the benefit of the railroad company in case of loss occasioned by them, so that the owner receives no advantage from his insurance in case of payment by the railroad company of his damages; and unless the company do pay, he has only been able to procure partial indemnity for his loss by paying an increased premium therefor. This section applies not only to the owner whose land has been taken in the construction of the road, but to any person whose property may be damaged by fire from the company's engines; and there would seem to be equal reason for claiming that no one whose property is located on the line of the road need protect it by insurance because the railroad is made liable in case of loss by fire from its engines, as to claim this in behalf of the owner whose land has been taken by the road in its construction. The danger of loss by fire communicated from the company's engines is only one of the many dangers from that source that threaten the owner's property; but owing to the proximity of the track to his buildings, he cannot protect them from this source of danger except at a price enhanced in consequence of this act of the defendants.

That no evidence was laid before the jury upon the subject of insurance does not alter the aspect of the question. The jury were instructed that no damages on account of increased insurance should be allowed, and the only conclusion we can draw is, that none were allowed on that account. I think the instructions were erroneous upon this point.

The instructions in regard to any peculiar advantage which the plaintiff might acquire from the construction of the road seem to recognize as a fact, that the facility thereby afforded him for transporting his pine trees to market was in itself an advantage of that peculiar character that would require him to offset such advantage against his damages for the land taken. Giving a land-owner access to his land where he had none before would not ordinarily be considered a benefit for which he should pay, but rather in the light of a general improvement in which many would share. See Carpenter v. Landaff, supra, 224, where BELLOWS, J., remarked, — "It is true that there may be cases where a single land-owner would be furnished such access where none existed before; but ordinarily it would be otherwise, and the cases would be extremely rare when many were not benefited by improved means of access. Indeed, such a state of things could hardly be expected at all, unless in a case of a private road."

The fact that the road gave the plaintiff access to his trees was not in itself such a peculiar advantage as to require him to submit to a reduction of his damages on that account. It does not appear but what others in the vicinity, whose land was not taken, were benefited in the same manner if not to the same extent. The instructions were not sufficiently explicit upon this point.

For these reasons I think the verdict must be set aside.