35 Vt. 373 | Vt. | 1862
This bill is brought t'ó restrain the defendants from planting and continuing willow trees along the line of their road, on each side, through the land of the orator, and upon ■or-close to the division line between the railroad and the orator’s land.
The orator alleges in the bill that said trees are planted within a few feet of each other, and so near to the division line that, if they are permitted to remain, in a few years they will extend their branches ovef, and theii roots into, the land of the orator, that sprouts will spring up therefro.m in tire orator’s soil, that dead and broken branches will be deposited thereon, and a shade so cast upon it, that the land ol the orator for a considerable distance back from the line of the railroad-will be so exhausted and injured as to be rendered nearly Value* less for the purpose of cultivation.
The defendants in their answer admit the planting of the trees, with the intention of having them remain and grow, and with the purpose, when they shall, have attained sufficient size, to attach boards to them, and thus make a fence along the sides of their road. They allege that the land on which their road is laid, is in many places low, and in periods of high water is overflowed to such an extent as to make it difficult to maintain -a fence constructed in any of the ordinary modes, and they deny all improper motives in planting the trees, and they also deny 'that any such injury is likely to ensue to the orator therefrom, ;as he has alleged in his bill. The defendants also allege in the ■answer that such a fence as they contemplate, will be beneficial
In the course of the argument it has been conceded on both* Sides, that the defendants have planted willow trees along a large* portion of their road; and that other land owners have also* commenced proceedings to restrain them from so doing; and that this case comes here as a representative case, for the purpose off settling the question as to them all.
From a consideration of all the testimony which has been-introduced on both sides, we are of the opinion that the orator' has established the fact by a fair balance of testimony, that the' planting and continuance of the trees and their growth, as designed and contemplated, by the defendants, would produce the injuries to the orator which he has alleged in his bill would result therefrom.
The question then arises, have the defendants a right to plant and cultivate a row of willow trees on each side of their road, through the orator’s land, in the manner and for the purposes contemplated, notwithstanding the great injury that must inevitably ensue to the orator therefrom ? The defendants surveyed' their road across the orator’s land, under and by virtue of their charter. Whether they obtained it all by proceedings in invitum, or whether a part was transferred to them by deed, would seem to be immaterial, so far as this question is concerned. They obtained it for the purpose of constructing and operating a rail-' road. By their charter the company were bound to fence their road, and it was in view of this obligation that the price to be paid was fixed upon by the commissioners or the parties, but evidently neither party contemplated that the road was to be fenced in this unusual and extraordinary manner, in a way that should virtually destroy or render nearly worthless an amount of land along the sides of the road nearly, if not quite, equal to the amount taken, and that, too, by the introduction into the farms of the willow tree, which some of the witnesses represent as the common enemy of the farmer in that vicinity, and one with which they have been contending half their lives, a tree that most of the witnesses seem to consider as injurious to the surrounding land, to an extent beyond that of most other trees.
But we think, in order to justify the railroad company in resorting to this method of ¡encing their road, in view of its effect upon the adjoining proprietor, there must be some strong and controlling necessity for their doing so.
And we are wholly unable to find from the evidence the existence of any such necessity. There would seem from the testimony, to be no great difficulty, with but slight additional expense, in constructing a fence in the ordinary form, that would withstand the freshets that the fences on this road are subject to,
This case is not like the case of Brainard v. Clapp, 10 Cushing 6. There the action was brought for cutting trees by the corporation that stood within the line of their road. This they had an undoubted right to do, if they judged best. That they might, and probably would, do this, all must have contemplated at the time the land was taken, and if any damage would ensue therefrom, it was embraced in the award of damages. The act was in accordance with the ordinary practice in such cases, and could produce no injury to the soil of the adjoining proprietor.
In regard to the power of a court of chancery to interfere, we think the authorities are clear that the court does possess the power. Story, in his work on Equity Jurisprudence, says, sec. tion 928 : “ There can not be the slightest hesitation, that if the acts done, or threatened to be done, would be ruinous, or irreparabie, or would impair the just enjoyment of the property in future, a court of chancery would interfere. Indeed, if courts of equity did not interfere in cases of this sort, there would be a great failure of justice in the country.”
' The decree of the chancellor is affirmed, with costs, and the case remanded to the court of chancery.
