Road Company v. Orr , 67 N.H. 541 ( 1893 )

The defendant, understanding that the road authorized by the plaintiffs' charter would pass through his land, and that they proposed to take by the power of eminent domain so much of it as would be required for the road unless he should agree with them upon the amount of his damages, verbally waived his right to compensation. The plaintiffs thereupon laid out and built their road.

The title to land acquired by an exercise of the right of eminent domain is not founded upon a contract, but upon a compliance with certain conditions imposed by the law, one of which is the payment to the land-owner of the damages occasioned to him by the exercise of this right. This condition being for the landowner's benefit, compliance with it may be waived or relinquished by him. A parol relinquishment is sufficient, as it is not a relinquishment of an interest in land, but of a pecuniary claim. If parol relinquishment is revocable, the revocation should take place before the other party acts, relying upon it. It is not material that damages are waived before the land is taken, when it is done with the understanding and knowledge that the grantees are about, to exercise the power granted in their charter. Fuller v. Commissioners, 15 Pick. 81; People v. Goodwin, 5 N.Y. 568; Marble v. Whitney, 28 N.Y. 297, 307; Mills Em. D. (ed. 1879) ss. 110, 111; 2 Dill. Mun. Corp. (3d ed.) s. 593. If in this case the plaintiffs took the defendant's land under the power from the legislature, relying upon his consent and waiver, and expended money in the construction of their road, the defendant is estopped to deny the legality of their proceedings.

If the transaction between the parties was an agreement for the conveyance of an interest in land, the result is the same. The entry by the plaintiffs upon the land and the construction of their road were such part performance of the contract as to take it out of the statute of frauds. Phillips v. Thomson, 1 Johns. Ch. 131; Seavey v. Drake, 62 N.H. 393.

As we understand the case, the plaintiffs, in laying out and constructing their road over the defendant's land, did not proceed under the power of eminent domain, but under his agreement with them. They had leave at the trial term to file a bill in equity as an amendment, without terms. Upon filing a bill for a conveyance of a right of way, there will be a decree according to the facts, the deed to be as of the date when the damages were waived, and judgment will then be rendered upon the verdict.

Case discharged.

BLODGETT, J., did not sit: the others concurred.