Lime Rock Railroad v. Farnsworth

Itailroads. Location. Land. Description. Damages. Ti. 8., c. 1, § 6, cl. X; c. 51, §§ 14, 19. A railroad company in taking by statute authority a strip of land for the location, construction, repair and convenient use of its road, thereby takes all the marble or limerock upon or under the surface of such strip. If such marble or limerock is owned separately from tlie ownership of the rest of the land, the railroad company can maintain a petition for the assessment of the damages that the owner of the marble or limerock has sustained from such taking. Of the description of the property so taken.

Agreed statement. This was an appeal by the defendant from an award of damages made by the County Commissioners upon the petition of the Lime Rock Railroad Company who had taken her property within its location. In the court below the parties stated their case as follows :— "The petitioners, the Lime Rock Railroad Company, in their petition set forth that said railroad, as located by its several locations, aforesaid, includes within its location the following-described real estate situate in said Rockland, viz :— a strip of land four rods wide, being two rods on either side of and parallel with the centre line of the Lime Rock Railroad, on the Engine Quarry Branch, so called, and running from land of the Cobb Lime Co., formerly of Susan Singhi, on the Northeast to land of Cobb Lime Co., formerly of John H. Adamson the Southwest; that said land is necessary for the purposes and uses of said Lime Rock Railroad and said Lime Rock Railroad Company have taken the same for the location, construction, repair and convenient use of its road as for public uses, and all the materials in and upon it in accordance with the pi’ovisions of its charter and the statutes of this State in such cases made and provided; that when said location was filed and approved, the limerock and minerals in the above-described land was owned by Lucy C. Farnsworth of Rockland; that the Lime Rock Railroad Company have settled with the owners of the soil for the damage occasioned by crossing said land as aforesaid, and prays that the county commissioners will estimate and assess the damage to which the above-named Lucy C. Farnsworth is entitled by reason of the taking by your petitioner, of said real estate to be paid to the said Lucy C. Farnsworth by your petitioner.” "It is admitted that the Lime Rock Railroad Company is legally authorized and empowered to take and hold land for the purposes above mentioned; that its lines of railroad are legally located, accepted and recorded. "It is admitted that Philip Ulmer in 1813 conveyed to Andrew Ulmer, 'all the marble or limerock’ which is within the lot of land, over which the road is located, — this conveyance being-separate and distinct from that of the soil; that the title of Andrew Ulmer, under this deed, through several mesne conveyances, was, at the time of the taking by the railroad company, in Lucy C. Farnsworth; also that the title to the soil has come down from Philip Ulmer, through various channels, until it reached the owner at the time of the taking- by the railroad company, with which owners the railroad company has settled for the damages caused by such taking. "Itis admitted that no marble or limerock, within the location aforesaid, was actually taken or used for the construction of the railroad and that it is not known that there is any marble or limerock within the land taken for such location, — there being none on the surface of the earth, though valuable quarries have been opened in the immediate vicinity of said location. "At the time of the hearing on said petition, before the county commissioners, Lucy C. Farnsworth filed with them a motion to dismiss the proceedings for the following alleged reasons :— " 1st. Because said petition does not allege or set forth that any land or lands of Lucy C. Farnsworth have been taken or used by said railroad company. " 2nd. Because the petition aforesaid alleges that the land for the right of way described in said petition has been purchased or settled for by said railroad company. "3d. Because the statute confers no right or authority on railroad corporations to appropriate or take limerock or other minerals separate from lands or soil; nor does it confer upon boards of county commissioners jurisdiction to assess damages therefor. "4th. Because said petition does not set forth that any of the limerock and minerals therein mentioned has in fact been taken or appropriated by said railroad company.” "If upon the foregoing statement of facts, the petition for assessment of damages aforesaid can be sustained, and damages legally assessed, the petition and appeal is to stand for trial, otherwise the petition is to be dismissed with costs for the appellant.” There is no statute authorizing the taking of minerals alone for public purposes ; neither can they be lawfully incumbered except in connection with the taking of land. Mills, Em. Domain, 52 ; Blake v. Rich, 34 N. H. 282 ; Woodruff v. Neal, 28 Conn. 165 ; Barclay v. Howell, 6 Pet. 498. Can be acquired only by purchase. 1 Redf. Rys. 265. Where it is necessary to excavate, the authorities may remove, but not use such materials. Smith v. Rome, 19 Geo. 89 ; Adams v. Emerson, 6 Pick. 56; Overman v. 'May, 35 Iowa, 89, and cases supra. There has .been no taking of limerock — none used in construction. Railroads cannot take as for public uses, limerock, or other minerals, that are owned separately and distinctly from the soil. Statute to be construed strictly. Company has already acquired all the rights possible under the statute. Taking must be in a physical sense, Sedg. Stat. Law, 454-5, not by separate proceeding. Eaton v. R. R. 51 N. H. 504. The location and maintenance of this railroad over a deposit of a valuable vein of limerock would injure the owner exceedingly, and the damages, if any could be awarded, would be great. If on the other hand, no limerock in fact was there, or if any, that of a poor quality, then the damages, if any, would be nominal. But how would the board of county commissioners ascertain the facts necessary to enable them to make a just, or any estimation of the damages, if any? Shall they be required to dig down into the bowels of the earth and ascertain if there be any such deposit there, and ascertain the quantity and quality of such limerock? or will they, in "stating the rights and obligations ” of the railroad company, require the company to so ascertain? The damages are remote and depend upon contingencies. They cannot be assessed in this proceeding. Sedg. Stat. Law, 455 ; Eaton v. R. R. supra. There is no sufficient description of the marble or limerock. Hamor v. Water Go. 78 Maine, 134, and cases.