Thompson v. River Co. , 58 N.H. 108 ( 1877 )

The defendants claim that the authority conferred by their charter, to make improvements of the river within a certain location upon payment of damages to owners of property injured thereby, is a guaranty of immunity against liability for any injury occasioned, by means of the improvements thus authorized, to property outside the prescribed location.

This position cannot be sustained. The terms of the charter in this respect are restrictive as to the locality of the improvements authorized. See 54 N.H. 546. Compensation for damages to property, injuriously affected within the location by means of these improvements, is particularly prescribed; but it cannot be inferred that the legislature, granting the power to take or injure the property of A within the location upon payment of compensation, intended to confer the right to take or injure the property of B outside the location, upon any different and more liberal considerations.

Whether any different rules of construction should be adopted with respect to public and private grants (the intention of the grantor being, in either case, the thing to be ascertained, and the governing principle of construction in both cases), it may certainly be declared that a grant of this character is not to be enlarged by unnecessary construction. The grant of the king passes nothing by implication. The Case of Banne River, Davies 55 (Dublin, 1674), citing 2 Henry VII, 13; Duke of Somerset v. Fogwell, 5 B. C. 875. The rule, thus promulgated in England four hundred years ago, applies in this country to all grants from the state. Potter's Dwarris 257; Cooley Const. Lim., ss. 468, 469; La Plaisance Bay Harbor Co. v. City of Monroe, Walker's Ch. 155; McManns v. Carmichael, 3 Iowa 1; The People v. The Canal Appraisers, 33 N.Y. 461; Van Horne v. Dorrance, 2 Dal. 316; Charles River Bridge v. Warren Bridge, 11 Pet. 545.

There is nothing in the constitution of New Hampshire, nor in the doctrines of the common law, to prevent the state or its agents from improving the navigation of the public rivers; and the mode and extent of such improvement are to be determined by the legislature, not by the courts. But the state, or its agents or grantees, cannot take or injure private property without affording compensation therefor. Orr v. Quimby, 54 N.H. 590.

Whatever difficulties may be raised in other cases by the distinction between the use and an improvement of a public stream, none seem to be presented in this case; and we are not called upon to anticipate the difficulties which such a distinction may present. The state has conferred on the defendants the right to make certain improvements for the purpose of facilitating public navigation. Special privileges of unreasonable use or improvement could only be granted upon the terms of making compensation for private injuries occasioned thereby. The defendants, in common with the rest of mankind, had the right, irrespective of any legislative grant, to the reasonable use of the river. Whether this reasonable use involves, to some extent, the right of improving the water-way by the removal of temporary or permanent obstructions, or otherwise, as in the case of a highway on land, — whether, on this point, there is a distinction between an artificial way for which compensation has been (or is presumed to have been) made, and a natural way acquired without compensation, — are questions not necessary to be now determined. If the defendants had a right of improving the way without making compensation, they do not claim that it was a right to make an unreasonable improvement. The question of the reasonableness of their improvements, as well as the question of the reasonableness of their use of the natural and the improved way, was submitted to the jury. The instructions were sufficiently favorable to the defendants. Eaton v. B. C. M. R. R., 51 N.H. 504; Thompson v. A. R. I. Co., 54 N.H. 545; Norway Plains Co. v. Bradley, 52 N.H. 86, 109, 110.

The declaration of the defendants' agent, as testified by Horne, was properly admitted. It was a declaration tending to characterize the acts which the managing agent was then doing. Upon the question of the reasonableness of the use of water, it was competent to show the extent of that use, and whether it was conducted with a reasonable regard for the interests and rights of others, or whether the defendants were governed only or mainly by their own pleasure and convenience. Whenever the acts of an agent will bind the principal, his declarations respecting the subject-matter will also bind him, if made in regard to a transaction in which he is then engaged. Story on Agency, ss. 134-137; 1 Ph. Ev. 381; 1 Greenl. Ev., s. 113.

Judgment on the verdict.

BINGHAM, J., did not sit.