A street was legally laid out, accepted and established across land owned by Bradford Kimball, the plaintiff’s intestate, December,' 7, 1875, by the proper municipal officers of Dockland, who, at that time, estimated his damages for the land so taken at $400, and awarded that sum to be paid to him therefor, saying nothing .about the time of payment. Said Kimball demanded payment of the sum thus awarded January 10, 1876, and his administratrix did the same in May, 1876 ; and the same not being paid, in February, 1877, she brought this suit. Defendants deny their liability, and claim that the action was prematurely brought because the agreed statement, on which the case is submitted, shows, in addition to the foregoing facts, that said street has never been opened and nothing has been done with or in regard to it by said city since its location as aforesaid. Before the passage of chapter 92, of the laws of 1854, now condensed to such an extent as tends to obscurity in It. S., c. 18, § 7, (copied from the same chapter and section in the revision of 1857,) it would not be doubted that the rights both of the land owner and the public became fixed and vested by the passage of the final order closing the proceedings requisite for the establishment of a highway or town way, before any act done towards fitting the land thereby appropriated for use as a way; and the public thereby acquired a right to the easement, to be exercised as long as they pleased, and the land owner’s *141right to bis compensation, as ascertained by the proper tribunal, was complete.
The courts of this State and New Hampshire and Massachusetts, under statutes substantially similar, concurred in so holding. Westbrook v. North, 2 Maine, 179; Hampton v. Coffin, 4 N. H. 517; Harrington v. Co. Com’rs of Berkshire, 22 Pick. 263; Hallock v. Co. of Franklin, 2 Met. 558. Upon the apparent injustice of requiring the defendants to pay the full value of the land for a mere naked right which they never have exorcised, and perhaps never may, and upon the unreasonableness of the land owner’s claim for full compensation as upon a complete actual taking of the land, when his possession never has been disturbed and perhaps never may be, and upon inferences from some of our own decisions in cognate cases, defendant’s counsel constructs an able argument which merits careful consideration, and would seem, so far as equitable reasons can lie regarded, entitled to prevail, if existing statute provisions and the settled law applicable thereto and the acts of the parties here, would permit.
The commonwealth of Massachusetts met the difficulties in the way of justice thus suggested, by the enactment of c. 86, stats, of 1842, providing that when county commissioners have estimated the damages sustained by any persons in their property by the laying out of any highway, they shall not order the damages to be paid, nor shall any person claiming damages, have a right to demand the same until the land over which the highway is located shall have been entered upon and possession taken for the purpose of constructing said highway. And this was held in Harding v. Medway, 10 Met. 470, to apply to all traveled ways in relation to which county commissioners were called upon under its provisions to direct or adjudicate. But the court, finding in Bishop v. Medway, 12 Met. 126, that they were not warranted by any just rules of construction in applying it to cases of damage awarded by selectmen to the owner of land over whieh they have laid out a town way, in 1847 (c. 259) an additional act was passed, expressly applying the same provisions to town ways, and imposing like restraints and duties *142upon selectmen. The effect of these statutes was considered in New Bedford v. Co. Com'rs of Bristol, 9 Gray, 348.
If we had such statute provisions as these, this case could be readily disposed of; nor should we be troubled with any such difficulty as the Massachusetts court encountered in Shaw v. Charlestown, 3 Allen, 538, in applying them to the case of a street established by the municipal officers of a city, because, with us, "the word town, includes cities and plantations, unless otherwise expressed or impliedand the term municipal officers includes the mayor and aldermen of cities as well as the selectmen of towns. E. S., c. 1, § 4, clauses 17 and 23.
Under such statutes, there could be no doubt that the land owner might properly be relegated in all cases where the land was not actually taken from his possession, to his action of trespass or case for the damages really suffered, when and so long as the taking is only partial and minatory but enough is done to interfere with the owner’s use or disposition of his property. That such an action may be maintained, when no effectual steps are taken to secure the public rights, by paying or tending within a reasonable time the compensation to which the constitution declares all whose property is taken for public uses to be-entitled, seems to be held in Cushman v. Smith, 34 Maine, 248, and Nichols v. Som. & K. R. R. Co. 43 Maine, 356; or, where no provision is made in the act authorizing the taking, for the assessment and payment of such damages, Comins v. Bradbury, 10 Maine, 447.
But the precise question before us, is, whether such action is the only or the proper remedy where the damages have been assessed by the proper tribunal, assented to by the land owner, and no order suspending the payment until the land is actually taken for the construction of the road, was made.
The only statutory provision which we have, looking to the end which the Massachusetts statutes so thoroughly accomplish, is found in E. S., c. 18, § 7; "Payment of damages may be suspended until the land for which they aré assessed is taken.” It is found among the provisions regulating the location, alteration and discontinuance of highways by the county commissioners. *143The act from which it was derived, c. 92, laws of 1854, runs thus: "The county commissioners in their several counties are hereby authorized to suspend the payment of damages awarded to owners of land over which any county road may be located until said land is actually taken for said road.” The act is plainly permissive, and not peremptory like the Massachusetts statutes ; and there is nothing to show any change of legislative intention in this respect in the revision.
If we could extend the power thus conferred upon county commissioners, by judicial construction to the municipal officers of towns and cities, still the case finds that the municipal officers of Rockland did not undertake to suspend the payment to Kimball; but awarded the sum to be paid to him as damages, apparently on demand. Defendant’s counsel labors earnestly to show that our statute rule with the aid of our decisions, is identical in its operation with the Massachusetts statutes. We think there is a radical difference, which it passes the just limits of judicial construction to correct. Whether further legislation is not required, is a matter which may well command the attention of our legislators. It does not appear, in Gay v. Gardiner, 54 Maine, 478, (upon which defendant’s counsellays much stress as a judicial interpretation of c. 18, § 7,) when the damages were made payable in that case by the tribunal which originally assessed them. From the reading of the case it might fairly be inferred that payment was suspended in that instance until the land should be actually taken. But the point decided, is, that a jury assessing damages independently, on an appeal, are not to allow interest as such, on such sums as they may find, from the time of the location. A doubt is expressed whether interest as such should be allowed at all. It does not seem to touch the case of the payment of an award of damages which is silent as to the time of payment.
If the city of Rockland pays more than is right, here, for the acquisition of an easement which they have thus far held to the probable inconvenience and embarrassment of the land owner, though they have not seen fit to avail themselves of it in actual use, they must charge it to a defect in the law which we cannot *144correct, or to a defect in the action of their own municipal officers under the law.
Judgment for plaintiff.
Appleton, C. J., Walton, Danforth, Libbey and Symonds, JJ., concurred.