Northern Railroad v. Concord and Claremont Railroad, 27 N.H. 183

Eastman, J. Upon an examination of the general railroad Jaw of December, 1844, together with the various additions and amendments that have been made thereto, as found in

chapter 150 of the Compiled Statutes, we are of opinion that the questions presented by this case may well enough be raised by appeal, taken in the manner in which this was.

The law contemplates a preliminary examination by the railroad commissioners in making “ such a survey of the route proposed by the corporation so applying, as they shall deem necessary, with the assistance of an engineer, to be by them selected, if, in their opinion, the same shall be necessary, which route shall be within the limits prescribed and authorized by the charter of said corporation,” before the final laying out of the proposed road by the commissioners. Com. Stat. ch. 150, § 9.

If, upon such examination, the opinion of the commissioners be that the public good would not be promoted by the laying out of the road, the commissioners proceed no further in the premises, unless an appeal from their decision be taken to the governor, who, with advice of council, proceeds to consider the matter; and if, in the opinion of the executive, the public good would be promoted thereby, he will issue an order, directing the laying out of the road, to the commissioners, who thereupon proceed to lay out the same. Com. Stat. ch. 150, §§ 9,19.

If the opinion of the commissioners is in favor of laying out the road, they so report to the governor and council; and they affirm or rejept the report, according as their opinion may be, whether the public good would be promoted by the laying out or not.

If the opinion of the governor and council is adverse to the laying out, the commissioners, proceed no further; but if in favor, then the commissioners, on application of the corporation, proceed to lay out the road, and in conjunction with the selectmen of the town, assess • the damages sustained by the owners of land, in the same way and manner as road commissioners in the several counties are now by law required to do ; and the same right of appeal to the court of common pleas in the county where the lands lie, is given, as in cases of highways. Com. Stat. ch. 150 §§ 9, 10, 11.

In case the road is to be laid out, the fifteenth

section of the s.ame

chapter provides that the commissioners shall, as soon as they reasonably may, make a report of all their proceedings, containing a particular description of the .railroad route laid out, and their assesment of the damages awarded to the several land owners, in the same way and manner as county commissioners are required to do, except that their report is to be made to the governor and council, and filed in the office of the Secretary of State, and is to be recorded by him in a book kept for that purpose.

The damages are also to be certified to the town clerks in the same way as road commissioners are required to do. It thus appears that the report made upon the examination, preliminary to the laying out, involves chiefly the question whether the public good requires the road to be made ; and upon this question there is the right of appeal to the governor and council, in case of an adverse report, and there is also required the confirmation of the opinion of the commissioners in case of a favorable report.

But the only appeal given by the act upon the laying out of the road, is to the court of common pleas, upon the award of damages. The doiugs of the commissioners appear to be final, except so far as controlled by this appeal; and upon an examination of the act, and of those to which it refers, we think the court may well enough entertain the question presented by the appellants, in this form of proceeding.

The commissioners have decided that certain rights and property of the plaintiffs shall be taken, and have awarded damages therefor, and from this decision the appeal is taken ; and we can discover no objection, which appears to us valid, why the question may not be considered upon this appeal. But whether the rights of the plaintiffs can be taken by the defendants, as was decided by the commissioners, is to us a much more important question, and we should add, difficult, also, were it not that the principle involved has been so fully considered in several cases in our own reports.

The point which we have considered is one of practice, merely, as involving the manner in which the question of right shall be decided. But the question of right itself goes to the foundation and merits of the controversy.

Assuming that the basis upon which railroads are. laid out by the commissioners is the public good — and such is the whole theory of the act of December, 1844 — and that the right of .eminent domain is exercised in taking the land of individuals, against their will, for the construction of the roads; or, taking the ground that, independent of the act of 1844, railroads are so far public highways as to authorize the exercise of the right of eminent domain, as we understand was substantially decided in the case of Greely v.

The Concord Railroad, in 1845, and the question of the power to take the plaintiffs’ rights must be regarded as virtually settled in favor of the defendants by the authorities of our own books. In Backus & a. v. Lebanon & a., 11 N. H.

Rep. 19, it was held that a charter, granting to certain individuals the right to organize and fqrm a corporation, without limitation of time, with power to construct a turnpike road, take tolls, &e., does not exempt the property of the corporation, including the franchise, from the power of eminent domain, and that the property may be taken for the public use, even if the powers of the corporation are thereby suspended, or the corporation itself in fact dissolved.

That the construction of a turnpike road, by a corporation chartered for that purpose, does not preclude the exercise of the power of eminent domain, in providing for a free public highway over the same ground; and that the provision in the charter by which the State reserves the right to purchase the property, after a certain period, at a certain price, will not prevent the legislature from taking the property for a public highway in the ordinary mode. In the course of the opinion, Parker, C.

J., says: “ Had the charter contained an express stipulation that the property of the corporation-should never be taken in the exercise of the power of eminent domain, the question would at once have arisen, whether it was competent for any legislature to make a contract of that character; whether any legislature has authority, by contract, to lay restrictions upon this power.

We have already had occasion to indicate a pretty strong impression upon that subject; and it is only necessary, at this time, to say, that we have as yet seen no reason to change the views heretofore suggested.” And the very learned Chief Justice refers to the cases of Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. Rep. 69; and of Brewster v. Hough, 10 N. H. Rep. 138, as the cases in which the opinion referred to was expressed.

And again : “ If the legislature should grant land to an individual, in fee, with a reservation of a right, at the expiration of a term of years, to resume the property granted, upon the repayment of the purchase money, with interest, that could not be construed as implying that a public highway should not be laid through it, in the ordinary exercise of the power of eminent domain. And the principle would be the same, if the tract was of such a shape and character that the whole of it was afterwards required by the public exigencies.” In Piscataqua Bridge v. New Hampshire Bridge, 7 N. H.

Rep. 67, this language is used: “ Had the legislature granted merely the right to build and maintain a bridge from point to point, and take tolls, and the public necessities afterwards required that a portion, or even the whole of the bridge should be taken for other public purposes, is there any question that this might have been done, if due compensation was provided for the owners?

We think not.” And again : “ If the government had been the owner of the land along the Piscataqua river, and had granted to the plaintiffs a tract of land co-extensive with their exclusive limits, the legislature might afterwards have authorized the taking of a portion of the land so granted, making provision for compensation to the grantee, notwithstanding the exclusive nature of the grant.” From these authorities, and the provision of the statute that any real estate, franchise or easement of any corporation, may be taken for a highway, in the same manner as the real estate of individuals, (Com.

Stat. ch. 52 § 11,) it seems clear that railroads which have adopted the act of 1844 as a part of their charter, as was the case here, being regarded as public highways, the right of eminent domain can be exercised in their favor or against them, and their property be taken, in the same manner as in the case of a turnpike corporation, a toll bridge, or a ferry. Indeed, all of the questions connected with this power, which arise in the ease before us, appear to have been considered in the cases referred to.

The fact that the rights and property of one company were here taken to subserve the interests of another, does not change the principle, so long as the talcing is for the public good. The tribunal who acted upon the matter were legally constituted to decide the question ; and if the public interests demanded that the plaintiffs’ rights should be taken, it could be done. In Piscataqua Bridge v.

New Hampshire Bridge, before referred to, it was held that the legislature have power to grant an exclusive right to erect and maintain a bridge within certain limits, and .to take tolls; that the grant in such case gives to the grantee a franchise ; and that the legislature cannot authorize the erection of another bridge within those limits, without provision for a compensation to the first grantee. But that such franchise is property, and that another grant to build a bridge within those limits may afterwards be made, if compensation is provided.

But notwithstanding we are of opinion that, upon the principles laid down, the defendants could take the property of the appellants, yet upon the facts before us, they cannot successfully defend against this proceeding. The report, an extract of which is embraced in the case, is altogether too uncertain to show whether the power of eminent domain has been exercised in taking the plaintiffs’ property or not. The laying out is voidable, for uncertainty.

It should have been marked by such definite and fixed monuments, so visible and palpable, that a jury could go upon the ground and readily discover where the laying out was. The line should not only be described by tangents and curves, but there should be such substantial and permanent monuments, from point to point, as could be easily found and recognized as those set forth in the report.

Where roads have been built, and landholders have acquiesced in the taking as being the land described in the report, perhaps they could not be heard to say that the land had not been legally taken; but where the question is properly and seasonably raised, in order to make the report a valid defence it should be essentially such as we have described. Neither does any way occur to us in which this report can be legally amended, so as to avail the defendants in these proceedings.

It is not a record over which the court has any control, nor is there any statute that we are aware of, by which the amendment can be made so as to relate back to the time of the laying out. According to these views, and the provisions of the case, there must, of course, be Judgment for the appellants.