20 Barb. 644 | N.Y. Sup. Ct. | 1855
This was an action brought by the plank road company to recover damages from the rail road company, for a trespass committed by them, by entering upon the plank road, tearing up the plank and grading and depositing materials for the rail ,road within *the bounds of the plank road ; and for an injunction against the rail road company to restrain them from proceeding with the construction of their rail road on and across the plank road, until they had procured the damages to be assessed and paid. Upon the trial, it was proved, and the referee found and reported, that the plank road company was duly incorporated and organized in 1850, and that they went on and built their road in 1851. That prior to the alleged trespasses by the defendants, the plank road company had, in accordance with the statute, procured their road to be inspected and had erected toll gates thereon, and were in the actual use, occupation and enjoyment of the same. This was abundantly sufficient to enable the plaintiffs to maintain an action of trespass for an entry on their plank roa.d, against any persons who did not show a better right to the possession of it in themselves.
The referee, therefore, erred in deciding, that, at the time of the commencement of this action, the plaintiffs had not any title to, or right in the land and premises, where the alleged trespasses were committed, and that the plaintiffs could not recover therein, on that account. But it appeared on the trial before the referee, and also on the argument of the appeal before us, that the defendants claimed, that, as a rail road corporation, they had a right to enter upon the plaintiffs’ plank road, and construct their rail road upon and across it, without, or before, causing the damages sustained, or to be sustained by the plank road company, to be assessed or paid ; which is denied by the plain
The defendants, as a rail road company were incorporated and organized under the act to authorize the formation of rail road corporations, and to regulate the same, passed April 2d, 1850, commonly called the general rail road act. (Laws of 1850, p. 211.) By the fifth subdivision of the 28th section of which act, it is provided, that every corporation formed under that act, in addition to certain other specified powers, shall have power to construct their road across, along and upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch ; but that the company shall restore the stream or water-course, street, highway, plank road or turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness. This provision of the statute was copied from the 5th subdivision of the 19th section of the act of 1848, on the same subject; and that, so far as it relates to crossing streams of water, water-courses, roads and highways, was taken from the 11th section of the act to provide for the construction of a rail road from Auburn to Rochester. (Sess. Laws of 1836, p. 493.) This statute has not been and cannot be so construed as to authorize a rail road corporation to enter upon and permanently occupy or seriously to injure a turnpike or plank road company who hold and enjoy their franchises and property under an authority of the legislature, equally valid and sacred as that which confers similar rights and privileges on rail road companies. On the contrary, this section is a clear manifestation of a legislative intention to protect the rights of turnpike and plank road corporations against intrusion and violence, by rail road companies. Rail road companies are authorized to intersect or touch them only on condition that they shall not unnecessarily impair their usefulness, to the owners. The inviolability of private property, whether belonging to individuals or private corporations, against the intrusion of rail road corporations, is strongly asserted and clearly illustrated by the supreme court in the cases of Fletcher v. The Auburn and Syra
The obstacle heretofore considered as existing in the way of a rail road company acquiring a right to run their rail road across a turnpike or plank road, consisted in the want of power to acquire the privilege desired, except by agreement. The statute authorizing a rail road company to acquire the title to real estate wanted for the road, by the special proceedings pointed out by the statute, was not considered applicable to cases where the title to the real estate was not to be taken, but only a partial privilege of using it, which did not divest the owners of their title, but only occasioned them some damage, which the rail road company had no power to compel them to surrender. This construction of the statute was in harmony with the legal doctrine of the inviolability of private rights, but was not in accordance with the enterprise and improvements of the age. That a turnpike or plank road, though owned by individuals and used as private property, might be extended through an important section of the state, and through its whole length intercept and cut off the far more important transits of rail roads, or be the occasion for demanding an exorbitant price for crossing them, is a consequence probably not foreseen at the time of the incorporation of these turnpike and plank road companies. It is true, that by the 5th subdivision of the 28th section of the general rail road act, a rail road company is empowered to construct its road across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch; but this statute is construed as granting only the; right
The referee also erred in finding and reporting that the injury done to the road of the plaintiffs by tearing up the planks, was only nominal. He might have found the damages as small as the truth or facts would justify, but the maxim de minimis non curat lex is not an applicable answer to an action for violating a clear legal right.
The judgment appealed from must be reversed; the report of the referee set aside, and a new reference to the same or some other referee, ordered.
Judgment reversed.
Bowen, Mullett and Greene, Justices.]