Clark v. Boston, Concord & Montreal Railroad

| Superior Court of New Hampshire | Dec 15, 1851

Eastman», J.

From an examination of the act of July 3, 1847, upon which this action is founded, taken in connection with the general railroad act of December 25, 1844, we tMnk the object of the former was to provide a remedy for any injury or inconvenience that might be occasioned to an individual, by a railroad, by reason of any change made by the corporation in any highway, turnpike, bridge or private way; and also, by reason of any obstructions placed by them upon any highway, turnpike, bridge or private way. By simplifying the first part of the act, it would read thus: If any railroad corporation, in constructing or maintaining their railroad, shall cause any injury or inconvenience to a person’s property by altering any highway, turnpike, bridge or private way, or by placing any obstructions upon the same, such person may maintain an action for such injury, whether the alterations be made for the purpose of constructing the railroad over, under or near such highway, turnpike, bridge or private way, or for any other purpose. The act cannot be understood to mean, as stated in the argument, that if the corporation, in constructing or maintaining their road, shall for any purpose cause any inconvenience or injury to the land, buildings or rights of any person, such person may maintain an action on the case therefor. Such a construction would, in effect, abrogate the powers of the railroad commissioners in awarding to land owners the damages sustained by them, and would open every assessment by them made to a reexamination. This the legislature' could not have contemplated. The act was probably founded upon the supposition, either that the commissioners had not the power to reach the injuries stated, or did not fully consider them.

The act is evidently confined to injuries and inconveniences connected with alterations in highways, turnpikes, bridges and private ways, and obstructions placed or thrown upon the same; and before an action can be maintained, it must appear that the plaintiff has suffered or is suffering injuries or inconveniences from such alterations or obstructions.

In this action, the injury complained of is one to the plaintiff’s private way; and the first question is, was the way described in the agreed case, a private way within the meaning of the statute ? A private way is one laid out by the public authorities for the accommodation of individuals, and at their expense. But when once laid out, the easement is as public as in highways laid out for the accommodation of the public. Metcalf v. Brigham, 3 N.H. 459" court="None" date_filed="1826-05-15" href="https://app.midpage.ai/document/metcalf-v-bingham-8503526?utm_source=webapp" opinion_id="8503526">3 N. H. Rep. 459. The same formalities are required by our statute in the laying out of private ways as of public. The only difference consists in the payment of the costs and damages. A man cannot have a right of way through his own land, independent of his right to the land. He may have a way through his own land at any place he may choose, and may vary it from time to time, or abandon it, as he may please, but such a way is not an easement. It is not a private way, within the proper and legal acceptation of the term, but a mere path or cart way. Barker v. Clark, 4 N. H. Rep. 383. The way, then, which is described in this case, is not a private way, such as was contemplated by tbe statute, but a particular part of tbe plaintiff’s land, over which he usually passed in going from one part of his farm to the other, and to which neither he nor the public had any more right than to all other parts of his farm. And it appears to the court that it was one of those matters which would fall peculiarly within the cognizance of the railroad commissioners, and demand their special attention in assessing the damages sustained by the plaintiff, by reason of making tbe railroad over his land. If the place which the plaintiff had appropriated as a pass-way from his buildings to the remote part of his farm, was more favorable than any other place for that purpose; or if he bad expended money in preparing it, by removing obstructions, or working it into a smooth cart path, it was certainly an injury, and perhaps a serious one, to have a deep cut made through it. It was also, in all probability, an injury to have his pasture divided. But these were matters which tbe commissioners could not fail to see, and which were surely damages sustained and proper to be assessed, by reason of tbe laying out of tbe railroad.

We have already decided at this term, in the case of Dearborn v. The Boston, Concord and Montreal Railroad, that the damages sustained by the owners of lands over which a railroad may pass, are to be all such as may fairly result to the land owner, by the building of the railroad in a suitable and proper manner; not only on account of tbe land actually taken, but on account of tbe injuries to bis other lands and property, and the inconveniences to which be is subjected. In tbe course of delivering tbe opinion in that case, we remarked, among other things, that the land owner is entitled, at the hands of the commissioners or the jury on appeal, to all the damages which equity and justice require; to all which he suffers by the loss of his property and rights, and the injuries done thereto. And for any such loss or injury which results from building tbe road in a suitable and proper manner, tbe land owner can maintain no action against the corporation. The whole matter is concluded by the award of the commissioners, or the verdict of 'the jury on appeal; for when the legislature authorizes an act, tbe necessary consequence of which is to damage the property of another, and at the same time prescribes the particular mode in which the damage shall be ascertained and compensated, he who does the act cannot be liable as a wrong doer. We remarked, further, that the damages awarded by the commissioners must be regarded as a full compensation for all the injury which the land owner may sustain from any cause which the commissioners were bound, or had a right to consider; so that it can never afterwards be made a question whether in fact the commissioners have or have not considered any particular cause of damage legitimate for their consideration. It must be taken that they have done their duty in considering all such causes. To put any other construction upon their duties would, we think, be contrary to the intention of the legislature and tend to endless litigation.

In the case of Dearborn v. The Boston, Concord and Montreal Railroad, we entertained no doubt that the road were liable for the damages there claimed; and in the present case, as there is no suggestion that the road was not made in a suitable and proper manner, we.are equally clear that the defendants are not liable.

According to the provisions of the case, there must be

Judgment for the defendants.