Hatch v. Vermont Central Railroad, 28 Vt. 142

Hatch v. Vermont Central Railroad

28 Vt. 142 | Vt. | 1855

The opinion of the court was delivered by

Bennett, J.

We think the court below were right in limiting the plaintiff to the line of the highway. The case, it is true, shows that the plaintiff’s store was built upon the line of the highway, and that he had been in the possession of the premises for more than twenty years; but no title deeds were put into the case, and we cannot presume, as matter of law, in the absence of proof, that the *147plaintiff’s title went'beyond bis, actual possession. Although the case shows that the highway, contiguous to the plaintiff’s store, was used by him and by his customers for their wagons, &c., yet there was no pretense that such occupancy was adverse to the rights of the public, or under any claim of right, except as a common highway, and, as such, to be used by any one who had occasion to use it; and there is nothing in the case to show any improper use of the highway by the plaintiff any more than by any of his customers. The case then does not call upon us to decide what would have been the rights of Hatch, if any, in case it had been shown that he owned the fee in the land, to the centre of the highway. It will be time enough to' decide such a case when one arises. Unless the plaintiff can stand upon the ground of negligence or want of proper care in the defendants, in the construction of their road, the principles oí the case were settled by this court in their previous decision; 25 Yt. 49. The jury, by their verdict, have negatived all negligence or a wanton disregard to the rights of the plaintiff, in raising the embankment in front of the plaintiff’s store; and have found that the plaintiff’s right of ingress and egress from his store has not been unnecessarily obstructed.

The plaintiff also had the benefit of the instruction to the jury, that, if the water course crossing the railroad was obstructed so as cause the water to flow back upon the plaintiff’s land, to his injury, he was entitled to his action.

It is clear the court was right in telling the jury that the plaintiff could not recover, although the defendants caused the water to stand in the highway in front of his store, without proof of special damage. If the standing water became a nuisance to the public, the remedy would be by indictment, and not by private action, unless in case of special damage. The plaintiff has no ground to complain of the charge of the court in any respect.

We are now required to see if any errors were committed in the trial of the cause, in the admission or exclusion of evidence, to the injury of the plaintiff. It has been settled, even by our own courts, that it is competent for the legislature to grant the fight of building a railroad without requiring compensation to be made to landowners for consequential damages in cases in which no land has been actually taken for the qse of the road; and, as fhe legislature *148hare not required compensation to be made in a case like this, for consequential damages, the plaintiff must be without redress so long as the company keep within their powers, and are not guilty of negligence or a want of care in the exercise of their powers under their charter. Testimony, then, to be admissible, should tend to show that the company have exceeded their powers, or have been negligent in the exercise of them. The offer made to Gov. Paine, the president of the company, by the street commissioners, to fill up the streets adjoining the railroad and the plaintiff’s bakery, and the reply of Gov. Paine to it, was properly excluded. It had no bearing upon the question of negligence in the defendants while engaged in .the execution of their powers, and besides, the declaration of Paine would not he evidence against the company, unless made by him relative to something within his agency.

We see no good objection to the admission of a certified copy of what purports to be a location of the road, from the records of the town of Burlington. It is not stated for what purpose it was offered, or for what purpose it was admitted.

It is clearly evident that such a paper was on record, and the jury must have found, under the charge of the court, that the defendants have constructed the road, and have ever since used it. If it was necessary for the defendants to prove a location, this was proof enough of it; and the theoiy of the plaintiff’s action goes upon the ground that the road was located in the very place where it now is, and the complaint is, that the location and the construction of the road were both improper.

The judgment of the county court is affirmed.