Portland & Rochester Railroad v. Inhabitants of Deering

Peters, C. J.

The town of Deering laid out two of its new ways over the track of a railroad company, and the question before a sheriff’s jury was as to the damages sustained by the company for the easements taken. The commissioner presiding at the hearing instructed the jury that they were simply to estimate the natural and actual direct damages sustained by reason of the crossings, regard being had to the use which the crossings were put to, namely, town ways; but that, in estimating such damages they should not consider the mere probable use in the future to which the land taken might be put by the railroad.

We think the latter branch of the instruction was erroneous. It too closely qualifies or construes the general rule. The jury, in order to decide what the damages were, should have been allowed to take into consideration, not only the use which the railroad was then making of their land, but the use which in all probability it would thereafter make of it. The error, no doubt, occurred from the commissioner having another principle in mind, which he was endeavoring to inculcate correctly to the_ jury, and that is, that prospective and speculative damages are not recoverable. But a distinction is to be observed between what land may be worth in the future and what it is now worth in view of the future. And as no man can foresee the future with any certainty, we are allowed to base calculations to some extent on the reasonable probabilities of the future.

There is a vast amount of land which is useless, unproductive, and costly to keep, and valuable only for the use which the future is quite sure to bring to it. If the railroad is not likely to make any more extended use of the land than it now does, the damages would be one sum, while if it be sure or in a high degree probable that it will soon make a greater and more *67 beneficial use of the land, the damages may be another sum. And so it is a general principle affecting such questions, that iff the future use of land will in all probability be greater and more valuable than its present use, such probability may be an element to be received into the calculation to establish present value. Properly is more valuable on a rising than on a stationary market.

The principle, however, has not expansive tendencies. It is. not what use the railroad may possibly make — likely as not, make — of the land in the future, nor even what need it may probably have for it at some uncertain and far off day. It is the' near, immediate future that may influence; the uncertain, indefinite, doubtful future can not. The doctrine is to be carefully applied. The subject itself does not admit of exact limits. Supposed future value is by no means to be taken as present. value. It is an element only, among other considerations, which' may afford light upon the question. Moulton v. Newburyport Water Co. 137 Mass. 163, 167 . The general- idea is safely expressed in Boom Co. v. Patterson, 98 U. S. 403 , where it is-said: " The compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the near future. ” And. the authorities are generally to the same effect, the one most, fitting the question of the present case being Railroad v. McComb, 60 Maine, 290.

We think all other matters were delivered by the commissioner ■ to the jury correctly and clearly. One point taken by the company, however, deserves especial consideration. The jury were instructed not to allow to the company, in the assessment of damages, any of the expense which will be incurred by them, in building and maintaining so much of the new ways as are-within the limits of their own location. The statute (R. S., c. 51, § 38,) lays that burden on the railroad corporation. The railroad is obliged to build and maintain these crossings at its own expense. But the company contends that, inasmuch as the statute was passed after their charter was granted, it would be *68 ¡unconstitutional to apply its provisions to highways not in 'existence when their road was built.

By an amendment of the company’s charter, accepted by them, iit was provided that " the company shall be subject to the general ¡laws existing in the state, or which may be hereafter passed by ¡the state. ” Pr. Laws, 1853, ch. 180. (Webb’s Bailroad Laws, Maine, 497.) See Con. Maine, Art. 4, part 3, § 14. One of ■those laws is that a railroad charter, such as this, may be ¡amended or altered by the legislature.

The question, therefore, is whether, in view of the power thus .reserved to the legislature, the statute relating to railroad crossings, as affecting this railroad in this instance, is or not constitutional. It is impossible to lay down any exact rule as to the ¡lawful extent of the exercise of this reserved legislative power, .and each case depends largely on its peculiar facts. But it is ¡universally admitted that the power of alteration and amendment ¡is not without limit. The alterations must be just and reasonable. '■The vested rights of property of corporations must be respected. ‘The power should be confined to reasonable amendments regulating the mode of using and enjoying the franchise granted, which do not defeat or essentially impair the object of the grant. Lierce ¡R. ¡R. 459, and cases; Cool. Con. Lim. *710, and cases.

Under any of the current definitions of this power of amendment, we think the statutory provision under discussion should mot be regarded as an unreasonable exercise of such power. Bailroad corporations, especially under ■ present laws, receive ■many compensations for all the burdens imposed on them. The •company pays nothing for its franchise; pays no tax upon it; ■may take a grant under general laws without recourse to the legislature ; its road crosses public ways and runs in places along ■such ways, without compensation to the town which paid for its easement to the original owner; may cross canals and navigable streams under some conditions (and this imposes burdens on other public interests) ; highways may be raised or lowered for its accommodation (thus affecting the grade of highways and often the convenience and safety of travelers) ; railroads to a reasonable extent may occupy highways with their trains; and other privileges and accommodations are accorded.

*69 By building and maintaining the town crossing within its own located limits, the railroad company has a control of it — as it should have — and can shape it as best for its own needs, and that is some compensation. Instead of the legislature allowing, as it no doubt might, the right of passing over a railroad in all places whore a passage could be effected without injury to the road, it coniines the right to a few places — to the public roads. The law' even forbids a person walking or standing on a track.

Another reason why the statutory requirement can not be deemed unjust, is, that it could not have been in the mind of the legislature or of the company, when the charter was granted, that so much of the public power was to be surrendered as the argument for the company assumes. Had the present statute been then in existence, it would not have been complained of as unreasonable. Railroad law was at that date in its infancy. Neither party knew what provisions for the preservation of all public rights and interests were needed. They were not inserted in the charter, nor were they then to be found in the statutes of the state. The charter was general, and the location of the line most indefinitely stated. While details were largely omitted, there must have been an unwritten, unexpressed understanding — an implication — that the charter should be subject to all reasonable legislative control. Since then the law has become better defined. The powmrs and privileges of railroads have been both curtailed and increased. Upon the whole, the legislative treatment of them has been reasonable and just. While the reserved power in this instance may not be deemed strictly a part of the police power of the state, it is something at least akin to it.

The tendency of the authorities sustain these views, and in some of the cases precisely the same question as arises here has been discussed and decided adversely to the railroad. Cool. Con. Lim. *577, and discussion in note ; Pierce R. R. 457, and cases, in note; Chapman v. Railroad, 37 Maine, 92; Norris v. Railroad, 39 Maine, 273 ; Bangor O. and M. R. R. Co. v. Smith, 47 Maine, 34; Railroad Commissioners v. Railroad, 63 Maine, 269; Albany Northern R. Co. v. Brownell, 24 N. Y. 345 ; *70 People v. Railroad, 70 N. Y. 569 ; English v. Railroad, 32 Conn. 240 . A contrary decision, however, was made in Detroit v. Plank Road Co. 43 Mich. 140 . If this result is possibly in some degree inconsistent with the case of State v. Noyes, 47 Maine, 189, decided in 1859, it is because that was a strict decision, and the law has made some advancement since that time.

It is not questioned by the town that some damages are recoverable by the railroad; and such must be the law. But damages are not assessable for the interruption and inconvenience occasioned to the business of the railroad by the opening of the new highways, nor for increased expenses nor increased risks in running their trains occasioned thereby. Those are matters clearly of police- regulation, damages for which would be too vague and uncertain for calculation. The claim is illogical if ■not unjust. Mass. Cent. R. R. Co. v. Railroad, 121 Mass. 124 .

It was ruled that witnesses could testify to their opinions of •the amount of damages that are sustained by the easements taken. It is presumed that the witnesses were, from their experience and observation, competent to express their judgments upon •the question, and that they understood the elements upon which the question was based. We think the testimony comes within .the limits which renders opinion-evidence admissible.

Exceptions sustained.

YirgiN, Libbet, Foster and Haskell, JJ., concurred. 'Walton, J., did not sit.