Rockland Water Co. v. Tillson

Danforth, J.

This is an action for alleged injuries to the plaintiffs’ aqueduct, constructed under an act of the legislature approved August 20, 1850, entitled, “An act to supply the people of .Rockland with pure water.” That such an act is so far for a public purpose as to authorize the taking of private property upon the “ payment of a just compensation,” is too apparent, and has been too long recognized to admit of doubt.

It is under this charter that the plaintiffs claim and its organization is admitted.

By § 3 the corporation “ may take and hold by purchase or otherwise, any land or real estate necessary for laying and maintaining aqueducts, for conducting and discharging, disposing of, and distributing water, and for forming reservoirs.”

By § 4 it is provided that, “ said corporation, within six months from the time they shall take any lands for the purposes of this act, shall file in the office of the register of deeds for the county or registry district wherein said lands lie, a description thereof and a statement of the purposes for which taken.”

Section seven provides for the payment of “ all damages that shall be sustained by any persons in their property, by taking of any land, or excavating through any land for the purpose of laying down pipes.” It also provides the manner of recovering such damages when the parties do not agree upon the amount to be paid.

At the place of the alleged trespass the plaintiffs had taken an easement in the land by excavating through it and laying down their pipes.

To show that the damages for such an easement had been agreed upon and actually paid, a receipt from O. B. Ulmer, who was the owner of the land, was put in by the plaintiff. A question has been raised as to the force and effect of this receipt, but its proper construction can hardly admit of doubt. It is not under seal and does not of itself convey, or purport to convey, the land or any interest therein. It simply acknowledges the receipt of “ thirty-five dollars in full for damages done land or otherwise in completing the works of said company.”

As it covered all damages for completing the works of the company, and as, by completing such works, it must have taken the easement it now claims, the receipt is proof of payment of satisfactory damages for the easement taken. This will more fully appear from the fact that the damages received were the same in kind, if not in amount, as would have been assessed if the compulsory process provided by the act had been resorted to. Nor does the explanation offered in the testimony of the signer tend in any degree to change its effect.

It is, however, claimed that the plaintiffs acquired no right under their charter to this easement for which they had paid, as against the land owner, other than a license to enjoy the same, which might be revoked at will; because they made to the registry of deeds no such return as the act requires.

It may be somewhat problematical whether in such case the act requires any return whatever. The act evidently authorizes the taking of land, when necessary, or an easement only, when that is sufficient. The damages in section seven are to be paid “ for land taken, or for excavating through any land for the purpose of laying down pipes.” Though by our statutes the word land includes all interests therein, this act seems to treat land and an easement therein as two distinct things and requires a return to the registry of deeds only of the land taken and the purposes for which taken. The reason of this distinction is sufficiently obvious; for the easement taken is definite and certain in extent and purpose, while the land taken can only be made so by such return as the act requires.

But if otherwise, the return was such as could be and was waived by the land owner. It was not a condition precedent, for it was not required, nor could it be made until after the taking was accomplished ; nevertheless it was a condition of the taking, and if not complied with, the owner might at his election reclaim his property. Wilson v. Lynn, 119 Mass. 175. Wamesit Pow. Co. v. Allen, 120 Mass. 352. Lund v. New Bedford, 121 Mass. 286.

These cases, however, differ materially from the one at bar. In neither had the damages been paid or assessed. Nor could they be, except by agreement with the land owner. Without such a return there was nothing definite to show what land or what interest had been taken, and hence no basis upon which to make an assessment. But it is obvious that this is a matter which concerns the land owner only, and therefore one which he can waive. It is only for the purpose of securing the “just compensation ” required by the constitution, and if that is otherwise secured to the satisfaction of the land owner, it would seem to be sufficient. From the control which every owner has over his own property it follows that, when taken for a public or private purpose, it is at his own option to insist upon or waive his right to compensation, and if so, a condition prescribed by law, not as a part of the taking, but to secure the compensation, not only may be, but is waived when a satisfactory compensation is received. This is in accordance with the principle laid .down in Moore v. Boston, 8 Cush. 274, in which it is held that the land owner may at his election, confirm the taking and avail himself of the compulsory process provided for the recovery of his damages, though no return, as required, has been made. That case is recognized as good authority in Wamesit Pow. Co. v. Allen, supra.

If the owner had proceeded under the law for the assessment and recovery of his damages, obtained a judgment for and a satisfaction of them, it would hardly be pretended that such a proceeding would not have been an affirmation of and rendered valid the taking. An agreement upon the amount and a payment under that agreement can certainly be no less effective.

We have no occasion to deny the authority of the several eases cited and relied upon in defense to show that a parol license to use an easement upon the land of the licenser may, at any time, be revoked, even though the licensee may have been at expense in making necessary erections to render his easement available. They refer to private easements and rest upon the well established principle that such can be acquired, under statute, only by deed or prescription.

There is another class of cases, perhaps equally as numerous and authoritative, in which it has been held that one in the enjoyment of an easement upon the land of another may, by parol, release it, and be estopped to deny the legal validity of that release after erections and expenditures had been made in good faith, relying upon it. The distinction upon which these two classes of apparently, if not really, conflicting cases rests, is that the former refer to and depend upon the conveyance of an easement upon one’s own land, while the latter are releases simply of an easement upon the land of the releasee. It is unnecessary to cite these cases, as they may be found collected and commented upon in 2 Am. Lead. Cas. 682-706. The former class are not applicable to the case at bar, for the reason that here the plaintiff claims the easement under its charter and not by any voluntary conveyance or license. The latter class has a bearing upon this, because they rest upon an estoppel amounting to a waiver. In these cases it is clearly held that by inducing one to make expenditures, it would be fraudulent to deny the truth of the statements made, or to set up rights which have been released, as such inducements.

In this case no conveyance is claimed to have been made. The land owner had a right to the return, for the purpose of his remedy in the assessment of damages. He agrees upon and receives his damages without that. The most that can be said is, that here is a release of that right, and it can hardly be denied that it would be in him a fraud to set up a claim to that for which he has,been paid to his own satisfaction. In holding him to that release or waiver there is no violation of any principle of law in reference to conveyance or otherwise.

In Cushman v. Smith, 34 Maine, 247, it is held by necessary implication that where land is taken for a railroad an action of trespass will not lie if damages are paid. If such an action will not lie, the land owner could hardly be justified in tearing up the track.

In Hazen v. B. & M. Railroad, 2 Gray, 579, Thomas, J\, says, “ In cases where the land owner has received his damages for the road as actually constructed, he may be estopped to deny the right of the corporation to use the land in fact taken and used.”

In Clement v. Durgin, 5 Maine, 9, it was held that the right to flow lands is given by the statute and that the damages for flowing may be relinquished by parol. If, then, the damages resulting from an easement may be released by parol without detriment to that easement, it would seem tiiat an agreement for, and receiving the pay, should be held as a waiver of one of the conditions of the taking.

In this case it is not necessary to decide what effect the acts of Ulmer may have upon a subsequent purchaser without notice. The defendant, at the trial, does not appear to have put his defense upon that ground. The deed was given in evidence, simply, as the case finds, to show a revocation of a license.

Besides, he was the purchaser of an undivided interest in the quarry only, and became so far a tenant in common with the owner, and the consideration of his deed was the opening of the quarry.

Thus his position is that of Ulmer and his rights the same, and his exceptions must be overruled.

The plaintiff has also filed exceptions raising a question as to the correctness of certain rulings in excluding testimony and refusing instructions requested and instructions given upon the question of damages.

The action is for an injury to the plaintiffs’ easement across the land described in their writ, for the purpose of carrying water in an aqueduct, including the materials necessary for its use. The injury complained of is the taking away the support of the pipe by undermining it, and the destruction of a portion of it.

It appears from the exceptions that, “the sum of $173.36 had been expended for new pipe, and repairs of pipe, made necessary by the injuries inflcted upon it by the defendant; ” and that it was “ proposed to prove by further testimony that the pipe would be in constant peril where it now is, by reason of the excavations and undermining done by the defendant, prior to the date of the writ; and that it would be necessary to remove it, or to build a more expensive structure to support and protect it; ” but the court rejected all further evidence on this subject, and ruled that the plaintiffs in this action could recover only the amount of money actually expended, prior to the date of the writ, for repairs done by them, which were made necessary by the acts of the defendant,” and “ that, if more permanent repairs were necessary, plaintiff could not recover the prospective cost of them, but must wait until the expense was actually incurred before they would be entitled to recover it.”

It also appears that eight different requests for instructions were refused.

The report of the evidence filed by the defendant in this case is made a part of the case, so far as it may modify this bill of exceptions. That report shows that some particular evidence was offered by the plaintiffs and excluded. This ruling, taken in connection with other testimony appearing in the report, does not appear to be objectionable. It does not appear from the report whether this testimony offered, as shown by the bill of exceptions, was in fact offered or not offered. Hence the exceptions in this respect cannot be considered as modified, but must stand as we find them. It further appears that, in the course of the trial, the court “ ruled that the plaintiffs can only recover in this action for expenses incurred to repair damages actually sustained in consequence of the acts of the defendant.” If we are to understand by the phrase “ expenses incurred ” such as had been paid, this ruling would be consistent with that excluding the offered testimony.

Thus the exceptions, modified as they are by the report of the testimony, present the single question whether the plaintiffs can recover all the damages caused by the defendant’s wrongful act in this action, whether such injuries have been repaired in full, or otherwise.

The general rule undoubtedly is, that no damages can be recovered which have accrued, or may accrue, subsequent to the date of the writ. This, like most general rules, may be subject to exceptions. In the ease of a personal injury prospective damages may be recovered when shown by sufficient testimony, if they could not be avoided by reasonable care and skill.

Another equally general rule is that a second action cannot be maintained for damages resulting from a single act. This rule may have its apparent exception, as when one erects a nuisance upon the land of another. In such case the injured party would recover damages only up to the date of the writ, and could maintain a separate action for each day the wrong should be permitted to continue. Russell v. Brown, 63 Maine, 203. C. & O. Canal Co. v. Hitchings, 65 Maine, 140.

These exceptions, however, are apparent rather than real. Both classes of cases rest upon the same principle, and are governed by the same rule in the assessment of damages. In all of them the plaintiff recovers for such damages as legally follow the wrongful acts .set out in the writ. In the case of a personal injury the act complained of is complete and ended before the date of the writ. It is the damage only which -continues, and is recoverable because it is traced back to the .act; while in the case of a nuisance it is the act which continues, or rather is renewed day by day. The duty which rests upon the wrong doer to remove a nuisance, causes a new trespass for each day’s neglect. The difference results from the different nature of the acts. The one is destruction or waste of property, the other a creation or addition to it. While to the latter the duty of removal is attached, from the former, for obvious reasons, no duty results but that of compensation. This difference is illustrated in Canal v. Hitchings, above cited. See, also, Lamb v. Walker, reported in 18 Albany L. Jour. 131.

The injury complained of in the case at bar is in the nature of waste. The acts complained of were complete and ended before the date of the writ. Hence whatever damages the plaintiffs are entitled to recover must be recovered in this action. As the act is not a continuing one, no new action can be maintained. If the damages are continuing, testimony showing that fact, if offered, should be admitted.

In such a case as this, the test to be applied is that recognized in Canal v. Hitchings. “Whatever diminution there is in the value of the property by reason of the trespass, is an element of damage.” In that case, at the close of the opinion, it is said, “ For an injury in the nature of waste, it would have been appropriate. For an injury resulting from a continuing nuisance, it was inappropriate.” If the property -was wholly destroyed, its value would be the test of damages; if partially destroyed, its diminution in value.

It will be readily seen from this view, that the cost of repairs is not to control, and may not even throw any light upon the question of damages. The plaintiff may repair in his own way, and thus make the property very much more or less valuable than it was before; or, if no repairs were made or “ expenses incurred ” in consequence of the injury, the damages recoverable would still be the same.

It will also appear that, while the testimony showing the cost of bridging, and the increased expense of supporting the pipe, if confined to the excavation made by the defendant, as well as that of removing it to another place, was' admissible, the requests for instructions in relation to those matters were properly refused. They involve questions of fact, rather than of law. It may be that the aqueduct was not worth repairing in any of the methods suggested, and if the jury should conclude that it was, it would be for them to say what would be the most judicious course to adopt, for the purpose of fixing the damages. While the plaintiffs would have the right of election as to the method or kind of repairs, the aqueduct could not be increased in value at the expense of the defendant, and the testimony in this respect could only be used for the purpose of showing the actual injury to the property and whether entire or only partial destruction. It does not appear that the plaintiffs were under any legal obligation to the public, or otherwise, to continue the aqueduct. If they were, the ease of Troy v. Cheshire R. R. Co., 23 N. H. 83, in which the plaintiff was under obligation to support and continue the road at whatever expense, would be applicable. In that event, the plaintiffs would not only recover the cost of restoration, but the increased cost of support, if such increase was made necessary by the trespass. Still, the whole damage must be recovered in one action, as it would be the result of a complete and not a continuing trespass.

If, however, the value of the aqueduct would render the necessary repairs judicious, and the best method of repair would leave it in a more exposed condition or with a less permanent support, then the increased expense of future support as shown by the testimony would be an element of damage.

Taking all these matters into consideration, the jury are to judge as reasonable men, whether any, and if so, what repairs should be made, and from this the actual injury to the property, and assess the damages accordingly. The result is, that, by the instructions given and withheld, they were evidently confined within too narrow limits, and the plaintiffs’ exceptions must be sustained.

Plaintiffs' exceptions sustained.

Defendant's exceptions overruled.

Appleton, C. J., Yirgin, Peters and Libbey, JJ., concurred.