Henniker v. Contoocook Valley Railroad

29 N.H. 146 | Superior Court of New Hampshire | 1854

Eastman, J.

The defendants are a corporation, duly established by the laws of this State, and by their charter had the right, in the construction of their, road, to do the acts complained of. For these acts the statute of 1847 provides a specific remedy. Comp. Stat. ch. 150, § 44. And where a statute authorizes the doing of certain acts, the necessary consequence of which is to damage the property of another, and at the same time provides a'remedy for the recovery of the damages occasioned thereby, the party injured is confined to the statute remedy for such damages. Lebanon v. Olcott, 1 N. H. Rep. 339; Woods v. Nashua Man. Co. 4 N. H. Rep. 527; Aldrich v. Cheshire Railroad, 1 Foster’s Rep. 359; Troy v. Cheshire Railroad, 3 Foster’s Rep. 83; Dearborn v. B., C. & Montreal Railroad, 4 Foster’s Rep. 187; Stevens v. Middlesex Canal, 12 Mass. Rep. 466; Wolcott Woolen Man. Co. v. Upham, 5 Pick. 292; Calking v. Baldwin, 4 Wend. 667; Spring v. Russell, 7 Greenl. 273.

The facts stated in this case shows it to be one falling within the provisions of the statute, and whatever recovery can be had must be upon a declaration framed accordingly.

As a declaration upon the statute the plaintiffs’ is clearly defective. There is no allegation that the acts complained of were done in the construction of the road, or in maintaining it. The grievance complained of is set forth as an unauthorized and illegal act, and, with the exception that there is an allegation of sixty days notice, as required by statute, the declaration contains nothing indicating that it is founded upon the statute.

The declaration may be well enough at common law, and a recovery might, perhaps, be had upon such a state of facts as are therein set forth. But the facts disclosed in the evidence are such as will only sustain an action under the statute, and, therefore, a recovery cannot be had on a declaration at common law. They show that the grievances complained of were caused by the making of the road under the charter. They were acts authorized by law and by the charter, and being so, and a specific remedy being given by statute, that remedy must be followed and a declaration drawn accordingly.

The law upon cases of this kind was so fully and well discussed in Troy v. Cheshire Railroad, already referred to, that we deem it unnecessary to examine the questions presented in this case further at this time.

Our opinion is, that the plaintiffs cannot maintain their action upon their present declaration ; but they may have leave to move the common pleas to amend.