The location of the Kennebec and Portland railroad across the land in controversy vTas filed in the office of the commissioners for Kennebec county on January 5, 1848. Seth Gay then owned the land, and till his death in March, 1851. *98Thomas Gay and Wm. E. Gay were the devisees of his real estate. Thomas Gay died in September, 1852, leaving his lands by will to William E. who thereby became sole owner of the locus in quo; and on his death, September 4,1874, his will gave to Charles Gay a life estate therein.
The railroad was located within the time and substantially according to the description in the charter. It was in process of construction at this place in 1849, and was open for travel in the fall of 1851.
It is conceded that the defendant corporation for the purposes of this case may be regarded as representing the companies which preceded it in the occupation of the road, having succeeded by consolidation, and by lease, to all their rights and liabilities. The ease presented, then, is as if the defendant company, having located its road over the premises in dispute in 1848, and built it 1849-1851, had maintained and used it from that time to the date of the writ, without payment of land damages; the land owners until these actions never having pursued any legal remedy to recover them.
It will be observed that the administrator of William E. Gay claims to recover damages for the trespasses alleged from August 25, 1870, to September 4, 1874; that is to say, for that part of the period of six years, immediately preceding the date of the writ, during which his intestate, the sole owner, was living. Charles Gay, to whom a life estate came on the death of William E. claims to recover the damages for trespasses, occurring from the death of William E. to the date of the writ; the trespasses in both instances being alleged as continuing during the whole periods stated. The two actions are included in one report.
The plaintiffs are, or represent, the land owners. Their lands have been taken, or at least the defendants have assumed to take and use them, for public purposes. No compensation has been made. Are the plaintiffs in position to invoke the constitutional guaranty, or have rights been lost by the extraordinary delay in resorting to legal remedy ?
It is undoubtedly true that " where a constitutional provision is designed solely for the protection of the property rights of the *99citizen, it is competent lor him to waive the protection, and to consent to such action as would be invalid if taken against his will.”
"The right to compensation, when property is appropriated by the public, may always be waived; and a failure to apply for and have the compensation assessed, when reasonable time and opportunity and a proper tribunal are afforded for the purpose, may well be considered a waiver.” Cooley’s Const. Lim. 181, 562, and cases.
"When neither the general statutes nor the special act contain any specific limitation in regard to claims upon railway companies. for land damages, it is held that the general statute of limitations of actions for claims of a similar character will apply.” 1 Redf. Rail. 851.
The general limitation for actions of trespasses on lands in this State is sis years. The right of action in cases of this character does not accrue till the expiration of the three years, from location filed, during which the county commissioners have jurisdiction. Davis v. Russell, 47 Maine, 446. The lapse of that time, three years for the special mode of proceeding, and six years thereafter limited for the common law form of action adopted,without resort to either, we should say would be sufficient evidence of waiver, in any case in which the evidence disclosed nothing to remove the inference naturally to be drawn from tbe - delay. This would be such a neglect to apply for the damages during the whole period of general limitation as, unexplained., "might well be considered a waiver.”
It is true that tbe acts complained of in such case may con- • stituto a continuing trespass, for which, without such waiver, remedy might be sought at any time before a prescriptive right accrued; the maintenance of the obstruction constantly renewing the liability, and the limitation only restricting tbe damages to six years prior to tbe date of the writ. But the right to recover the full compensation is complete when the location is filed. A special and adequate method of obtaining an estimate and payment of tbe damages within three years is provided. When, after that, an action of trespass is brought, and it is found that *100'the general period of limitation applicable to that action has ■ passed since the acts of trespass began, we think an explanation is required, else the facts imply a waiver of the claim. In this < case the three years expired January 5, 18,51. Thereupon the ¡liability of the corporation to an action at common law, which had been suspended during the period of the commissioners’ Jurisdiction, accrued of revived, and might be enforced by any appropriate process; the statutory methods of procedure being -cumulative and not exclusive. R. S., c. 51, § 10; Davis v. Russell, 47 Maine, 446.
Notwithstanding the features of a continuing trespass which the '■case presents, we think the presumption of waiver arose at the ■■expiration of six years from January 5, 1851, without action brought, unless something appears to show that such delay was . consistent with an intention to demand the damage.
But the evidence in this case shows that from the time of the •location down to about the date of the writ, there were constant ■ negotiations between the owners of the lot and the companies .Tunning the railroad in regard to compensation for the part taken i by the location. No application to the commissioners for an • estimate of the damages, nor request for the corporation to be ¡required to deposit security therefor, appears to have been made; :nor were the damages ever adjusted. But the validity of the rplaintiffs’ claim was never denied. It was never urged that Seth 'Gay in his life, nor his successors, had waived it. The acts of ¡the officers of the companies within the scoj)e of their duty and ; authority, were repeated admissions of liability. No question ■was ever made except about the amount of the damages, the > demands of the land owners in this respect being regarded as ¿exorbitant by the companies.
Under such circumstances, the railroad was a continuing • obstruction of the plaintiffs’ land without right, in regard to which they only held their action in suspense. The preliminary ¡right of possession, as a step towards acquiring title, became •extinct upon unreasonable delay to perfect the proceedings, by an actual payment or tender of compensation for the land taken. .¡For three years to pass without application to the commissioners, *101was unreasonable delay, and thereupon the corporation was liable in trespass. Cushman v. Smith, 34 Maine, 247, 265; Nichols v. S. & K. R. R. Co. 43 Maine, 356 ; Davis v. Russell, supra.
During the long delay that has since intervened, the corporation has not been asserting an adverse possession, or an adverse right. They have only been disputing about damages. The owners have not been waiving rights. In the protracted effort to settle the amount of damage by agreement, they have simply delayed to bring a suit against the road for an obstruction which was a continuing trespass upon their lands and the maintenance and use of which, without waiver by the land owners, was a constant renewal of liability. We do not perceive that such a state of facts could ever bar the plaintiffs’ action, or afford the defendants any benefit, except what they derive from the limitation of the damages to the period of six years immediately preceding the date of the writ. Without deed, the location never could become .legal, except on payment or waiver of the land-damage, or by prescription. In no other way could the company acquire legal, permanent possession. There was no payment. The evidence removes the presumption of waiver that might arise from the lapse of time. Upon the facts proved, the character of the defendant’s occupation was not such as to mature into a prescriptive right.
The plaintiffs are not seeking in these actions to recover the damages which Seth Gay in his life sustained. The administrator claims, and is entitled to recover the damages which accrued to his intestate during his life, and within the period of limitation, by the permanent obstruction of his lands without legal right. Charles Gay is entitled to recover for similar damage to his life-estate during the period stated in his declaration.
Defendants defaulted. Hearing in damages at Nisi Prius.
Appleton, C. J., Walton, Barrows, Danforth and Peters,, JJ., concurred.