47 A. 265 | N.H. | 1900
The plaintiff, as tenant by curtesy, possessed and was entitled to enjoy the right to use farm crossings which were appurtenant to the premises so held by him. If those rights were infringed, the plaintiff's life interest was sufficient to enable him to maintain any appropriate remedy in law or equity to redress the wrong, independent of the owners of the fee.
The plaintiff could acquire no right to or in the crossing by prescription. The statute providing that no title can be acquired by adverse possession by or against a railroad prevents the acquisition of any rights in that manner. P. S., c. 157, s. 15. *405
At the time of the construction of the defendants' railroad and since, the statute imposed upon railroad corporations the duty to provide suitable crossings for the accommodation of landowners in accordance with the agreement of the parties, or, if unable to agree upon the place, number, or kind of such crossings, then in accordance with the determination of some tribunal provided for that purpose. Laws 1850, c. 953, s. 5; C.S., c. 150, s. 45; G.S., c. 147, ss. 1, 16; G.L., c. 161, ss. 1, 16; P.S., c. 159, ss. 1, 19. When the defendants' railroad was constructed, the disputed questions as to the location and construction of crossings were determined by three disinterested justices of the peace. Laws 1850, c. 953, s. 5; C.S., c. 150, s. 45. Subsequently, the power to determine these questions was conferred upon county commissioners (G. S., c. 147, s. 16; G.L., c. 161, s. 16); and later upon the railroad commissioners. Laws 1889, c. 54, s. 1; P.S., c. 159, s. 19.
Under the statute, the plaintiff had the right to a suitable crossing over the defendants' railroad. The length of time the crossing has been maintained by the defendants for the benefit of the owners of the premises, and has been used by them without objection, shows it was legally established, either by the agreement of the parties or by some duly authorized tribunal.
The question of the location of the farm crossing is to be determined by the application of the doctrine of reasonable use. P.S., c. 159, s. 1; Jones v. Seligman,
Prospective changes in the original construction were contemplated, and compensation therefor was included in the original award of damages. Dearborn v. Railroad,
The old crossing had become so blocked by the increased business of the road that its further use was unreasonable, and it was the duty of the road to provide another which would be reasonable. This it has done; and while there might be a question of jurisdiction *406 if the facts were in dispute, the agreement of the parties in this case as to the question which the commissioners would upon renders an application to them a useless ceremony. As between these parties, the agreement establishes the fact that under the existing circumstances the new crossing is, and the old one is not, a reasonable and suitable way.
Upon this state of facts no cause for equitable interference is shown, and no damages can be recovered for the time since the new crossing was built. Neither can damages be had for the failure to construct the new crossing prior to the plaintiff's demand for better facilities. Horne v. Railroad,
While there was occasion to change the location of the crossing, the change should have been made in the method prescribed by statute. Neither party can separately undertake to determine the question of location (Connecticut etc. R. R. v. Holton,
Case discharged.
All concurred.