Ash v. Cummings

50 N.H. 591

Opinion

Sargent, J.

Article 12 of our bill of rights authorizes the taking of the property of individuals, and the property and franchises of corporations, and the appropriation of the same to public uses, provided it be not done without the consent of the owner or the consent of the representative body of the people. When the owner does not consent, then if has always been held that land might be taken by consent of the representative body of the people to wit, by an act of the legislature, by making just compensation therefor, but not otherwise. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Concord Railroad v. Greely, 17 N. H. 47; Petition of Mount Washington Road Co., 35 N. H. 134; Crosby v. Hanover, 36 N. H. 404; Northern Railroad v. Concord & Claremont Railroad, 27 N. H. 183; Backus v. Lebanon, 11 N. H. 19.

It has also been held in this State that to authorize the taking of land or other property for public uses, the law which provides for the taking of the property must also make the provision for compensation ; that it is not enough that the owner may obtain his compensation by an action for the wrong done. Piscataqua Bridge v. N. H. Bridge, 7 N. H., supra; Petition of Mount Washington Road Co., 35 N. H., supra; Bristol v. New Chester, 3 N. H. 524, 535, in which Richardson, C. J., says : “ The power of the legislature to take the property of individuals for public purposes is indisputable. * * There is no doubt that wjien this power is exercised, a just compensation is to be made. The constitutions of some of the States expressly declare that such compensation shall be made, and natural justice speaks on this point where our constitution issilent?’ Eastman v. Company, 44 N. H. 160.

So far, then, is settled; — the act that provides for taking land from an individual and appropriating it for public use must make provision for just compensation to the owner, or it will not be in accordance with that voice of natural justice,

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* which speaks in the place of a constitutional provision to that effect.

The right of thus taking property for public uses might be exercised directly by the State, or it might be conferred upon a public corporation, where one object was the public accommodation, convenience, or benefit, though the corporation might be at the same time seeking its own advantage and profit as well as the public good. Concord Railroad v. Greely, supra. It was also held that the same power might be given to a private corporation or company which was also seeking its own private advantage and profit as well as the public benefit. See numerous acts incorporating canal and turnpike companies, and acts for the improvement of our rivers. Petition of Mount Washington Road Co., supra; Company v. Fernald, 47 N. H. 444.

If it is constitutional to grant to a private company the right of thus taking property for public uses without the consent of the owner, it follows that it is none the less so to grant the same right to an individual, if it is done under similar restrictions and limitations, and subject to the same conditions. The use is just as public, and no more so, if the highway is built by a public corporation, or a private company, or a single individual, provided the same road is built .in each case, and subject to the same regulations and restrictions.

It makes no difference whether the Amoskeag mills, at Manchester, are operated or owned by a corporation, or a private company, or an individual. ' If they are a public benefit, when operated and owned by a corporation, they would be none the less so if operated and owned by an individual, provided they were the same mills and operated in tbe same way. It is no objection, then, to the law we are considering, that it authorizes individuals as well as companies or corporations to take the property of other individuals, companies, or corporations for the purposes specified.

Neither is tlie act objectionable because it provides for a committee to settle the question whether any given dam, in its use of any.particular stream or in the flowing of any particular lands, is necessary and of public utility; for where land is taken for public use,'it may.be done by general law, as in this case and the case of public highways, or by special acts, such as have been so often passed in relation to railroads, turnpikes, canals, and aqueducts. Backus v. Lebanon, 11 N. H. 19; Company v. Fernald, 47 N. H., supra.

In Company v. Fernald no question was raised concerning the method provided in the act for ascertaining and paying compensation to the owner; nor was that case embarrassed by any objection to the manner in which the right was proposed to be taken, or to the party that was to take it — p. 455.

Let us now examine the present case, and see what questions arise. This is an action upon the case at common law for flowing' the plaintiff’s land. Can it be maintained ? It can, clearly, unless the right to maintain it has .been taken away .by this act of 1868, chap. 20. Let us examine this act, and see what are its general provisions.

Section 1 provides that “ any person, or any corporation authorized by its charter so to do, may erect and maintain on liis or its' own land, or upon land of another with his consent, a water-mill, and a. dam to raise the water for working it, or for creating a reservoir of water and for equalizing the flow of the same for its use and of mills below, upon and across any stream not navigable, upon the terms and conditions and subject to the regulations hereinafter expressed.”

Section 2 provides that “if the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam,” and the damage thus caused be not adjusted by the parties within thirty days after notice, either party may apply to the supreme court in .the county, &c., “ to have the damage that may have been or may be done thereby, assessed ;” and the court shall appoint a committee of three disinterested persons to determine in relation to the matters set forth in such petition.

Section 8 provides that said committee shall give notice, hear the parties, view the premises, “ and if they shall be of opinion that the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this State, and that the same is necessary for the use of the mill or mills, for which skid dam was designed, they shall estimate the damages and make report,” &c., but otherwise the petition shall be dismissed. If either party so elects, a jury may assess the damages, and judgment may be rendered upon the report of the committee or the verdict of the jury for the amount of the damages so assessed, with fifty per cent, added thereto.

Section 4. “ No person or corporation, shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment.”

Section 5 contains certain exceptions and reservations not material to be here considered.

If we consider the provisions of this act, independent of the fourth, section, we are led to inquire whether here would be provision for that just compensation held indispensable in such cases ; and as the compensation is not to be made before the land is virtually taken and used, does the provision insure a safe method in which the compensation may be surely and seasonably recovered ? — because, if it is indispensable that reasonable compensation be made, then if it is not made in advance, such provision must be made as will render its seasonable payment certain beyond a peradventure. But in this case the land is first to be taken, or flowed, which is substantially the same thing; for a piece of land is as effectually taken from me if it is flowed so that I cannot remain upon it or occupy it, as in any other way. It would be the most effectual way of taking my land from me, to drive me from it and keep me out of possession of it by covering it with water so deep as to render my remaining upon it, or my occupancy of it, impossible. The land is not only thus taken, but taken without notice, without an opportunity to be heard, and without any compensation.

But it is said that a way of compensation is provided. But what particular interest has the mill-owner to ask to have the damages assessed, when he will be obliged to pay them with fifty per cent, added, while, if he does not move at all, he has nothing to pay, and cannot be sued in any other mode ? Suppose he is disposed to have the damages assessed as early as may bo: or suppose the land-owner commences proceedings to have his damages assessed as soon as he may, after the thirty days have elapsed — it may be anywhere from one to six months before he can enter the same in court; and then suppose it is referred to the committee at the first term, and they hear the parties and make report at the next term; and suppose judgment should be rendered upon the report at the second term, — the case might be settled in course of a year from the time the land was flowed, though that would be unusually speedy justice when we consider all the delays to which such suits are liable in the course of adjustment.

But within and during that year a man’s farm may be submerged, he and his family may be drowned out of his dwelling-house like a rat out of his hole, and his castle which the king cannot enter may be taken by storm, by a flood of water ; a whole gold mine in Lisbon might be flooded and rendered useless during the whole time ; churches and school-houses might bo inundated and ruined irretrievably. In fact, every mischief which a flood of water can do, would or might be done before judgment, without any compensation, and before any remedy could be available. And then, suppose the committee should find that this flowage was not of public use or benefit to the people of this State, or was not necessary for the use of the mill for which the dam was built, — how would the land-owner get his damages ? Or sup pose tbe finding is the other way, and the flowage is held to be of public benefit, &c., and a judgment is finally rendered for the actual damages done and fifty per cent, added, — what guaranty has the land-owner that the mill-owner will be responsible for that judgment when he obtains it? The mill-owner may be wholly irresponsible when he commences to flow the land. His mill and dam and water-power and all his premises may be mortgaged for their full value before he raises the water upon the land, and he may be utterly worthless, and yet all the hope of compensation the land-owner can have is the hope that sometime in the distant future he may be able to recover a judgment againt a worthless mill-owner; or if the proceeding is terminated the other way, he may, after his property is ruined, possibly have the privilege restored to him of bringing an action upon the case against a man without means or responsibility. In either case the land-owner is forced to the alternative, to use a homely adage, of “ suing a beggar and catching a louseand this is the just compensation which the land-owner is to receive, seasonably and certainly, for injuries and mischiefs which may have been inflicted upon him without the shadow of right, and from which he may never be able to recover himself.

This is the construction we are asked to give to this statute. But what would be gained by such a construction ? If that was what was intended by this statute, we should be forced to hold that it would be unconstitutional and void; for surely no statute could be held constitutional, which should to such an extent disregard not only the plain precepts of our constitution, but also that voice of natural justice, which speaks so plainly where the constitution is silent.

If we were sure that this was the intent and design of the law, we should be obliged to find that the legislature had deliberately undertaken the hopeless task of overturning the constitution and nullifying all its safeguards.

But this we should never do unless it were absolutely unavoidable. If we could find any other reasonable construction that could be given to the act, we should of course resort to it rather than come to such an unwelcome result. Let us then examine sec. 4 of this act, and see if that will give us any clue to an interpretation of the other provisions we have been considering.

Sec. 4, as we have seen, provides that “no person or corporation shall derive any title from said proceedings, or he discharged from 'any liability in relation to said premises, until he or it has paid or tendered to the.person aggrieved or damaged the amount of such adverse judgment.”

That an action of tort cannot be maintained for the doing of an act duly authorized by law is well settled. Bridge v. Bridge, 7 N. H. 71; Henniker v. Contoocock Valley Railroad, 29 N. H. 146, and cases cited; Towle v. Railroad, 17 N. H. 519; Osgood v. Blake, 21 N. H. 550; Dean v. Sullivan Railroad, 22 N. H. 321; Fletcher v. State Capital Bank, 37 N. H. 369; State v. Wilson, 43 N. H. 419; Stokes v. Sanborn, 45 N. H. 276. But that of course presupposes that the provisions of the law are constitutional. It is claimed that this act gives the mill- owner the right to flow land, and provides a remedy for the landowner to ascertain and recover his damages, and that this remedy must be followed, and that the action upon the case at common law is no longer available to the plaintiff, at least until the other remedy has been tried and failed. And it is said that this provision is made as a safeguard to the land-owner, and that, though the mill-owner may flow the land, he cannot obtain title to the land until he pays the judgment. But that is not the only provision of section 4. The second provision is, that no person or corporation shall be discharged from any liability in relation to said premises until he or it pays, &c.

One of the liabilities in relation to the premises which would attach to the person flowing the same, would be the liability to be sued in an action of tort like the present for the damages thus caused. Was that liability taken away, or was it expressly reserved by this section 4 ? It is not taken away, certainly, and it is reserved and preserved, if the language of this section is to be received and understood in its ordinary meaning. Is there any reason why this language should not be allowed to have its plain and ordinary meaning in this connection ? None that we can perceive, but certainly every reason why it should have. We should even put a forced construction upon language in order to find a way to be able to hold that the legislature intended to pass a constitutional law, and we should even try to be ingenious in inventing some way, if necessary, to give such construction to this section as would enable us to hold this law to be valid, if not in all its parts, at least as far as possible.

The case of Bloodgood v. The Mohawk & Hudson Railroad Company, 18 Wend. 9, is a case much in point. In that case, by the act of incorporation, power was given to the company to enter upon, take possession of, and use the lands of individuals in the construction and maintenance of their road, with a proviso that the road should purchase the lands so taken of the owners, and if these parties could not agree, then that the damages should be appraised in a manner therein specified. It was held, in view of the constitutional prohibition to taking private property without making just compensation to the owner, that the proviso above referred to must be deemed a condition precedent; and that the appraisal must be made, and the money paid or tendered, before the company could justify the taking of the land under their act; and that trespass guare clausum might be maintained until such damages were assessed and paid. This case had been decided in the supreme court in favor of the defendants, 14 Wend. 51. But in the court of errors it was held that the plea of defendants, by which they attempted to justify their entry on the ground that such entry was authorized by their act of incorporation, and therefore lawful, was not sufficient without alleging that the damages had first been assessed and paid; not because the terms of the defendants’ act were not literally broad enough to cover such entry, but because if construed in that way the act must be held to be unconstitutional in so far as it attempted to take the land of the owner without making him just compensation.

Walworth, Chancellor, in his opinion, says: “ In the case under consideration, if this company were authorized to take possession of the plaintiff’s property and complete the construction of their road before the plaintiff ’s damages were assessed and paid or offered to be paid to him, he might have been wholly without redress, as he had no power to compel the assessment of damages, and no adequate fund was provided for the payment of the damages when ascertained. The citizen whose property is thus taken from him without his consent is not bound to trust to the solvency of an individual, or even of an incorporated company, for corporations, as well as individuals, are sometimes unable to pay their just debts;. * * * and if the true construction of this charter was such as is contended for by defendants’ counsel, I should hold that the provision which authorized the appropriation of the plaintiff’s property to the use of th¿ corporation, before the damages had been ascertained and paid, was unconstitutional and void.”

“ I cannot, however, agree * * * that such is the fair and legitimate construction and meaning of defendants’ charter. It is a primary rule in the construction of statutes, in those countries where the limits-of the legislative power are restricted by the provisions of a written constitution, to endeavor if possible to interpret the language of the legislature in such a manner as to make it consistent with the constitution or fundamental law. Applying that principle to the statute under consideration, and having ascertained that it would be inconsistent with the fundamental law of the State to authorize the defendants to take possession of the lands of an individual without having made an adequate and certain provision for the recovery of the damages which he would necessarily sustain by such permanent occupation of his property for the purposes of the road, there appears to be no difficulty in giving such a construction to this statute as will be consistent'with the constitution, and also with the probable intention of the legislature. This may be done effectually by considering * * the proviso to the seventh section in the nature of a condition precedent not only to the acquisition , of the legal title to the land, but also to the right to enter and take the permanent possession of the land for the use of the corporation.” Plea held insufficient, and plaintiff’s demurrer sustained.

I have quoted at length from this, opinion, because it seemed to be so directly in point. In the case before us, we have only to give to the language of the legislature, as used in sec. 4, its full, fair, and usual meaning and significance, to accomplish all that is desired to carry out the true intent and meaning of the legislature, as we conceive, and at the same time give the act force and effect as a constitutional provision. -

In sec. 1 it is provided that any person may erect and maintain a dam, &e., “ upon the terms and conditions and subject to the regulations hereinafter, expressed,” one of which conditions is that he-shall acquire no right under the act, and be relieved from no liability until he'tenders the compensation required by the act.-

Séptions- 2 and 3 provide a particular remedy to which either party may resort, — and it may perhaps be worthy of consideration to inquire why the privilege is given to the mill-owner thus to institute proceedings against himself, when he is to pay all the damages with fifty per cent, added, and costs, unless it was to avoid a multiplicity of suits at common law, which the land-owner might otherwise bring against him, rather than apply in the way the statute has provided. By instituting proceedings under this act and paying the damages required, the mill-owners escape all litigation for subsequent flowage. This provision may have been inserted because the mill-owner is not to “be discharged from any liability” until the damages are paid or tendered.

Another reason : we are to presume that the legislature did not intend to violate the constitution, and that presumption can be fully sustained by giving full force and effect to this sec. 4, and, as we have seen, not otherwise. What reason then can be urged for not giving this section the plain and simple construction which its language indicates and which common sense would dictate, which relieves us from all difficulty in construing the other provisions of the law, and which is consistent with the presumption that the legislature did not intend to violate the constitution, and one which will enable us to hold that the act is valid, and can be used for some practical and beneficial purpose ? We are unable to discover any.

This construction of the mill act leaves the land-owner in possession of his constitutional rights, and gives him compensation before his property is destroyed or materially injured, as at common-law before the passage of this act; it enables the mill-owner to escape innumerable suits and endless litigation by applying to have the damages assessed against himself for all future time, and all the past that has not been adjusted, by showing that his is a case in which private property ought to be taken for public use with compensation, thus giving abundant constitutional effect to the act. In this suit, damages are to be assessed and judgment rendered as if the mill act had not been passed. If the judgment is satisfied, the defendants can never again, in any suit at common law or under the statute, be compelled to pay the damages recovered in this action, nor fifty per cent, thereof additional.

If a petition should be filed under the statute, and a judgment for damages should be rendered thereon before a judgment in this suit is rendered, perhaps the plaintiff might have his election to go on with this suit, and retain any security he may have, by attachment, to satisfy the judgment in this suit, or to become nonsuit and allow the subject-matter of it to be settled on the petition. If he should recover a judgment in this suit and also on the petition, and defendants should pay both judgments, the law would not, of course, justify an injunction founded on the judgment in this suit. If plaintiff recover a judgment in this suit, and it is not satisfied, and a petition should be brought under the statute, there might, perhaps, be no objection to including in the judgment on the petition the amount of the former judgment and fifty per cent, additional, treating the petition as a suit upon the former judgment as far as it goes, and treating the former judgment as conclusive as to the estimation of the damages included in it. There would be no. difficulty in settling every practical question that may arise, — nothing to be compared with the difficulties that have been overcome in the construction of the homestead act, and some others. If the land-owner chooses to go on with his common law action notwithstanding the pendency of a petition, the damages claimed in the former must be excluded from consideration in the latter.

The act, in terms, applies to cases in which land “shall be overflowed, drained, or otherwise injured by the use of such dam.” It does not say legally or rightfully overflowed. If it were legally and rightfully done, there would, be no need of the act; and sec. 4 is explicit that the mill-owner shall be discharged from no liability until the damages are paid.

But suppose that the land-owner endeavors to prevent the mill-owner from building his dam, or from flowing his land after the dam is built, by "injunction, what course is to be taken, and what rule to be applied ? A mill-owner, in a given case, may be wholly irresponsible, "and in all cases there is a possibility that the flowage may not be deemed óf a public benefit and necessary for the use of the mill, and some power must be lodged in the court to apply the general principle involved in ordinary cases of injunction to this new law. The spirit of this law might perhaps require that the forms should be changed, but effect may be given to the principle without conflicting with the spirit of this law. '

A case might arise where the proof would render it so probable to the court, so morally certain that any possible use of a given stream by a proposed dam could not be of public utility, or nece’ssary to the mill, that the court might, upon hearing, enjoin the mill-owner from flowing the land; but such a case would not often be likely to occur. In ordinary cases, upon application of the land-owner for an injunction, the court would notify the mill-owner; and, instead of giving the plaintiff his injunction, as we do in other cases, by his giving bond to respond in damages to the other party if he does not succeed, we should, to meet the spirit of this act, order that the mill-owner, in case he showed no other right to flow the land than what arises under this act of 1868, should deposit with the clerk of the court such an amount of cash as, upon the best evidence that the case admitted of, would be compensation for the damage about to be done; and unless he did this, or in some other way should give security equivalent to compensation, we should grant the injunction of course ; but if he did this, the spirit of this act of 1868 would authorize the court to refuse an injunction in order that the mill-owner might, by actual flowage, bring himself within the letter of this act and proceed by petition.

We think that, by the mill-owner’s giving security satisfactory to the court, this law would not authorize the court to interfere by injunction to prevent the mill-owner from building his dam, and showing by actual experiment of flowing that such flowage was a public benefit and necessary to his mill, and thus make out a case in which he might entitle himself to hold the land by paying such damages as should be appraisee]. under the act. It would be the duty of the court to see that no. mischief was done without ample security for compensation; but we think the spirit and general scope of the mill act must be held to so far alter the common law that the exercise of the power of injunction ought to be withheld, under due limitations and guards, in order to enable the mill-owner tovbring himself within the mill act so far as an experiment of flowage would have that effect. But unless the mill-owner in all cases should give ample indemnity for compensation, the injunction should issue.

So, also, with the land-owner’s right to demolish the dam as a nuisance without process of law: that would be prohibited by injunction, where the mill-owner had given the security ordered by the court to pay all damages ; or, if he should then give it, an injunction would issue against the land-owner forbidding him to demolish the dam until an experiment of flowage had been tried, so that the mill-owner might bring himself within the provisions of this act if he could.

By keeping in view the great fundamental doctrine that no man’s land is to be taken from hifn even for public use without compensation, and that hence no one can experiment with a man’s land to see whether a public use can be made of it or not without full indemnity for all damage to be done and inconvenience to be suffered, we may, we think, so far modify the forms of proceeding as to conform to the spirit of this new law, and can mould the law into constitutional form so as to carry out the true intent and design of the legislature in this new enactment without making it an instrument of oppression or of wrong to any.

In cases where the State, or a county, or a town, is to be made liable for the damages which an individual may suffer by having his property taken for the public use, it is not so important that the compensation should be paid or secured in advance, provided the law provides a certain and expeditious way of ascertaining and recovering it, because there the presumption and the fact are, that these municipalities' are always responsible. But with an individual or a corporation the case may be very different, and hence in such cases the suggestion of Chancellor Walworth, before cited, becomes one of great importance, that the land-owner must be made sure not only of a remedy to ascertain the amount of his damage and to enforce its payment, but also of a definite and certain fund out of which he is to be paid. By ordering the payment of a sufficient sum of money in advance to indemnify against all damages that would be likely to be assessed, or the securing in some other way a sum which shall be perfect indemnity, is simply making the necessary provision for some certain fund out of which the land-owner is to be paid, when from the nature of the case there is no other certain and definite fund on which he can with certainty rely.

In this case the plaintiff contends that the use to which the lands taken or flowed, under the act of 1868, are to be appropriated, is injno sense “ a public use,” such as the provision in the constitution contemplates. But it becomes unnecessary to consider that question here. If the plaintiff were right in this position, it would of. course follow that this action can be maintained. And if he is wrong in this posi. tion (G. F. M. Co. v. Fernald, before cited), still we hold that he can maintain his action by giving to the act in question the construction we have suggested, so as to leave it free from constitutional -objection upon other grounds. And it can be held' constitutional upon any grounds only by holding that it does not authorize the defendants to destroy or -appropriate the plaintiff’s property without compensation. With that construction the plaintiff can maintain his action at common law for the wrong done until the defendants obtain an appraisal of the damages, and pay or tender the same according to the provisions of the act.

The case of Lebanon v. Olcott, 1 N. H. 339, has been cited as an authority for the defendants, and it is a direct authority for their position. In that case the defendants, an incorporated company, were authorized to take lands, and to flow other lands and highways ; and the charter made the same provision for’ compensation in both bases. Yet Richardson, C. J., in the opinion, concludes that though the land taken must be paid for before it is .occupied, yet for lands or highways flowed, and thus damaged, the damages need not be assessed or paid until after the flowage; in other words, that land or a highway might be taken for the purposes of flowage without paying or tendering the damages in advance, and for the reason that the selectmen could have ££ no certain data” in the absence of an actual experiment of flowage, and that their opinion concerning the damages would be “ at best only vague and uncertain conjecture, equally unsafe to all parties as a ground of decision.”

First.- we might doubt the correctness of the decision in that case upon the facts stated, and hold that, as the charter gave the same remedy and created the sanie liability in the one case as in the other, the same rule should have been applied in both.

Second: we might suggest that, however the facts may have been at that time (1818), there can"be no good reason at the present time, with all the modern improvements in engineering and levelling, and all the experience and observation in flowing lands by dams for the last forty years and inore, why the data might not now be sufficiently accurate to enable any competent board of' referees -or committee to form a substantially correct opinion as- to the damage to be done by flowing land with' a dam of a given height.

Third: it would seem rather hard that a man should be compelled to give up his house or lands against his will, and suffer them to be flowed an indefinite time, in order to furnish £! certain data” as ££ a ground of decision” upon which to estimate his own damage, when he wanted no damage and only desired to be let alone in the enjoyment of his own property., especially when the party or corporation that is thus to take his land without his consent’ and compel him to wait until he shall thus furnish against himself the necessary evidence, the££ certain data,” for a correct decision, may be, at the time the land is taken, wholly irresponsible, or if not so then, that he may become so long .before all the *£ certain data ” are furnished upon which a correct decision could be made, and the land-owner thus be left, without available remedy, to suffer injustice and wrong. A man thus situated and thus suffering would be likely to form a very poor opinion either of the constitution itself, or of the manner in which it was interpreted and its principles applied.

Fourth: the last suggestion, which is perhaps more to the point than either of the others, is, that whatever the facts may have been in Lebanon v. Oleott, and whether the decision in that case upon those facts may have been right or wrong, the legislature, in the case before us, have left nothing uncertain and nothing open for construction, but have expressly provided that the mill-owner shall not be discharged from any liability in relation to the premises — meaning the premises flowed — until he has paid or tendered the damages which may" be assessed under the act. These damages the defendants have not paid or tendered, nor have they procured them to be assessed, and they are not therefore to be discharged from any liability in relation to said premises ; and if not, then they are not to be discharged in this common law action of tort, but must answer and defend it as best they can, assured that the act of 1868 can afford them no protection or justification in this suit until they have “ paid or tendered to the person aggrieved or damaged the amount of such adverse judgment ” as may be rendered against them under the provisions of said act.

If plaintiff prevails in this case he will be entitled to damages as at common law, and not the damages provided for in the act of 1868. As agreed by the parties, an auditor may be appointed at the next trial term to assess the plaintiff’s damages in case the parties do not agree.

Case discharged.

And see East Kingston v. Towle, 48 N. H. 59, 60. . Reporter.

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Decided at Manchester (adjourned term) August 15,1872, and inserted in advance of its place for obvious reasons. Reporter.