Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-09-08

ing proceedings for an appeal after the
death of the original petitioner, and ii
was NOT possible Tor either the plain
tiff or the defendant by means of any
subsisting statutory provisions there
for, to have the question of just COM
pensation determined by a disinterest-
ed tribunal, the constitutional guaran-
ty of just compensation had not been
and could not be fulfilled, that the
city's title to the land must fail under
this proceeding for its condemnation,
and that there must be a new taking
by the city to obtain a valid title.
1t should be unnecessary to add that
there is no warrant for extending the
scope of the decision beyond the facts
of that particular case. 1t determines
the effect Ct the abatement of proceed
ings for an appeal caused by the death
of the appellant. Whether the award
of damages made by the municipal Of
icers in any or every case is vacated
by the appeal of Il land owner from
their estimate is a question which was
not necessarily involved in that case,
and the opinion does not assume to de-
eide it. The case is manifestly not al
authority for the contention that such
original assessment or award is va
Gated by. the appeal while the appel
liant is living and competent to prose-
cute his complaint.
The constitution provision that "pr-
waite property shall not be taken for
public uses without just compensation"
does not require that the payment of
such compensation should precede the
tannOf1rV nnclIn1tinn of land
incipient proceeding to the acquisition
of 4 title to it or to an easement in it,
1t operates to prevent the permanent.
appropriation of it without the actual
payment or tender of just compensa-
ton for it, and the right to such tenn
porary occupation will become extinct
by an unreasonable delay to perfect
proceedings including the payment of
compensation. Unless such compensa-
ton be made within a reasonable time,
damages may be recovered for the con-
tinued occupation and for the injuries
resulting from the prior occupation.
The provisions Of our statutes re-
specting the location of town ways AMI
the assessment of damages for the land
taken for that purpose are in harmony
with this doctrine. Section seven of
chapter %, R. s., provides that mu-
nicipal officers shall not order such
damages to be paid nor shall any right
thereto accrue to the claimant until
| the land over which the way is located
has been entered upon and possession
taken, for the purpose of construction
or use" Section 8 allows the owner Of
land not exceeding one year after the
location to take off timber wood or
any erection thereon. Section % pro-
vdes that no such way shall pe
opened or used until after sixty days
from it's acceptance by the town." and
section SO declares that when town
ways ARE finally located by municipal
| officers, unless the land is entered up
on and possession taken for said pur-
pose within two years after the laying
out, the proceedings are void" Final
ly section AZ gives the land owner an
action of debt to recover the damages
awarded him after thirty days from
demand on the town treasurer
1t is evident from these express
terms and clear implication of the
statute, that it was the intention of the
legislature that when a way had been
duly located and established, the land
taken is to be actually occupied and
the road built and opened to public
| travel within two years from the loca-
ton irrespective of the tendency of
any appeals upon the question of dam
ages otherwise it would be in the
power of the land owner not
only to delay the construction
of the road, but to defeat the
location of it altogether, by taking an
appeal upon the question of damages
and delaying the final determination OF
it until the expiration of two years
from the location of the road. 1t
would not be reasonable to impute to
the legislature such contradictory pur-
poses. 1t intended to prescribe the
method Of taking land in the exercise
of eminent domain for the promotion
of the public welfare and it did not in
tend at the same time to interpose OBJ
stacles which would have the effect of
multiplying that legislation by defeating
and delaying the contemplated i'm
prOVementS.
The defendant was not satisfied with
the estimate of damages made by the
municipal officers and exercised her
statutory right of appeal. Her appeal
is still pending undetermined: but sub
ject only to the contingency of her
death it affords her a certain and ade-
quate method of having a just COM
pensation for the taking of her land
awarded by disinterested tribunal
In the meantime the occupation of the
land over which the road is located
has legally been under the exclusive
control of the officers of the town act
ing under public law. The road was
built and opened to public travel with
in the two years allowed by the stat
ute 1t was public way at the time
of the erection of the fence described
in the indictment and it was therby
unlawfuly INSTRUCTED by the de-
PENDANT.
Judgment for the State.
Reed September 4th, 1909.
Somerset County. Frank r. Stewart,
ct al. VS.. Harry l.. Hooper, and trus-
tee. Rescript, Ono opinion) White
house, J.