Brainard v. Missisquoi R. R.

48 Vt. 107 | Vt. | 1874

The opinion of the court was delivered by

Pierpoint, Ch. J.

No question arises in this case as to the right of the defendant company, under its charter, to locate its railroad upon and over the plank road; nor as to the manner in which the defendant company exercised that right. By laying its road upon and over the plank road, the company took all the rights and interest that the plank road company had in and to the land and territory upon which said plank road was laid. The plaintiff claims that when the*railroad company located its road over the plank road, which crossed his premises, the rights of - the plank road were thereby annihilated, and that the land upon which it was located, reverted to him as tiré adjoining land-owner, and from whom it was originally taken for the purposes of said plank road, and that when taken by the railroad company for its purposes, the railroad company was liable to pay him for the land taken, the same as if no plank road had previously existed there. This claim we think is not well founded. The railroad company, by virtue of its charter, had the same right to take the franchise of the plank road company, together with all tho rights and interests that said plank road company had in and to the land over which the road had been constructed, that said railroad company had to take the property of any other party, making duo compensation therefor. This principle is fully recognized and established in this state, in the case of White River Turnpike Co. v. Vt. Central R. R. Co. 21 Vt. 590. This being so, it is clear that when the railroad company regularly located its road over the plank road, it became invested with all the rights that the plank road company had in the premises over which it run ; and the plank road company having paid the plaintiff for the rights that they had acquired therein, the railroad company is under no obligation, either legal or equitable, to pay the plaintiff therefor a second time.

The plaintiff claims in the second place, that there was a different and greater burden imposed upon the land by taking it for a railroad than for a plank road, whereby he is injured. The commissioners in their report have disposed of this claim by finding that there was no greater burden imposed by the railroad than was imposed by the plank road, and gave a very satisfactory reason why.

The plaintiff claims, thirdly, that he was injured by being deprived of the use of the plank road, and that he was entitled to compensation for such injury. The injury that-the plaintiff sustained by the loss of the use of the plank road, is one that he sustains in common with the whole public. Every person who was accommodated by the use of the plank road, sustains an injury of the same character and kind, differing only in degree, whether he lives upon the line of the road or elsewhere. The same injury would result from the abandonment of the road, or from its destruction from any cause. All the authorities agree that for such injuries, damages are not to be allowed. Holman v. Townsend, 13 Met. 297; Stetson v. Faxon, 19 Pick. 147.

In the fourth place, the plaintiff claims that in consequence of the destruction of the plank road and the substitution of a railroad, he has been compelled to construct a private road from his buildings to the public highway, and that the railroad company should compensate him therefor. The iujury which the plaintiff claims to recover for under this head, is one that is not common to the public generally, but one that is peculiar to himself, and one that results necessarily from the substitution of the railroad in place of the plank road. It is, in substance and effect, an additional burden imposed by the railroad company upon his land ; and when that is the case, it is conceded that compensation must be made. We think the plaintiff is entitled to recover the sum of $125 which the commissioners have found to be the amount of damage which the plaintiff has sustained in this respect.

Judgment of the County Court reversed, and judgment rendered for the plaintiff for the sum of $125, with interest from the term of court to which the report was made, and his cost.