39 F. 449 | U.S. Circuit Court for the District of New Jersey | 1889
(charging jury.') The counsel in this case are so nearly in accord in their statements of the law involved in this case that I do not think it necessary to multiply words about it. The difference between them is in their application of the well-understood and well-settled principles of law to the facts in the case. Nor do I propose to advert to the evidence which you have heard, for the reason, in the first place, that I Was not hero during the examination of all the witnesses, and in the next
Now, the railroad company acquired the right to exercise a franchise conferred upon it by the legislature by resorting to a proceeding which the legislature provided for the benefit of the owners of the land through which the railroad is constructed. In other words, the railroad company has no right to exercise the powers conferred upon it by the charter until it makes compensation, in some form, to the owners of the land which is taken, and over which the railroad is being constructed. The railroad must agree with the owner of the land, or if that cannot be done, then it must apply to the proper tribunal for the appointment of commissioners to assess the damages which are .assumed to result from the consiruction of the railroad over the man’s land. In this ease such proceedings were instituted in the proper court here in New Jersey. Viewers or commissioners—viewers, they are called in Pennsylvania; commissioners, I believe, in New Jersey—were appointed to estimate the damages supposed to result to the land of the plaintiff by reason of the construction of a railroad. Those proceedings wore so conducted that they resulted in a condemnation of the land of the plaintiff, and a computation of the damages which the commissioners so viewing the land estimated would result by reason of that construction. That award has been read to you, and it appears to have been filed, and to have had the effect of a conclusive ascertainment of the damages as between the railroad company and the owner of the land, (unless appealed from by one or the other, which does not appear in this case,) and settled the right of both as to the amount of damages to be paid by the railroad company and to be received by the owner of the land. The amount in this case was not satisfactory to the railroad company, and negotiations, no doubt, were commenced between the railroad company and the owner of the land, the result of which was that a less amount than fixed by the commissioners was agreed to be paid and received. Accordingly, a deed of conveyance was made by the plaintiff, conveying the lands to the railroad company. The deed was executed and delivered, and was for a consideration stated in that deed. That consideration was accepted by the owner of the land, and it had all the effect then-of a transfer of the rights of the land-owner and an investiture of the right to construct this road upon the railroad company which the condemnation proceedings would have had, and embraced all the damages which the plaintiff might have recovered by condemnation proceedings. It is not a mere partial release of the damages to which the owner of the land might be entitled which is provided for there, but the construction which the court gives to it is that it relieves the railroad company as effectually from the payment of the damages caused by the consiruction of the road as the perfected condemnation proceedings would have done. Whatever damages, then, would result necessarily from the construction of that road through the lands of the plaintiff were released, to the railroad company, or rather the railroad company was released from all liability for them just as effectually as if the land had been taken by the railroad company under the condemna
But it is alleged further that after this road had been in operation for some years, and no apparent injury resulted from the construction of the road for that period, a change was made in the construction of some of the bridges upon the road, and after that time the injury complained of here accrued, and that, in part at least, is what is complained of, and for that reason damages are claimed by the plaintiff. It appears that when the embankment was constructed through the plaintiff’s land there were three bridges made, of the width of 40 feet each,—40-feet spans, —and that while these bridges were maintained in this condition the injury did not accrue to his lands, but that after this change was made and the water-way under the bridges extended, that great injury resulted to the road and land of the plaintiff, by reason of which a considerable number of acres were rendered useless, still more were damaged, and he was deprived of the crossing of the stream on the south side of the road which he had enjoyed before. It is claimed that that was the result of the water passing from the north to the south side of the bridges, and that it greatly impaired the use of his land south of the railroad. The defendant, in the construction of these bridges, as I have already intimated, was, in the exercise of its unquestionable legal right, to construct them according to the judgment of its engineers, as to what is necessary and
I think I have stated now with sufficient fullness the principles of law which arc applicable to this case, and by which you are to be governed in making up your verdict, and that you understand generally how those principles are to be applied to the evidence upon which you must pass in this case. You must find, therefore, in the first place, that the railroad company was in the exercise of unquestionable power conferred upon them by the legislature in the construction of this road in a mode such as it had a right to determine, and as must be determined by the exercise of a reasonable and skillful judgment on the part of the engineers
Another question was presented by counsel for the defendant, upon which he asked the court to instruct the jury, and that is, that as this railroad was constructed originally by the Easton & Amboy Railroad Company, and the defendant, the Lehigh Valley Railroad Company, is merely operating this road under a written arrangement or agreement with the Easton & Amboy Company, that the defendant, the Lehigh Valley Company, does not thereby sustain such relation to the plaintiff here as to make it liable for damages resulting from what has been done in this case, and that therefore this action cannot be maintained against the Le-high Valley. I think, gentlemen, that the character of the agreement is such as puts the defendant substantially in the character of a lessee of the Easton & Amboy Railroad Company, and if anything wrong is done, for which, if done by the Easton & Amboy Company, it would be liable, that the defendant also is liable; so that I decline to instruct you as counsel for the defendant asked me to.
That embraces all that I think is necessary to say to you, and you will, therefore, take the case and decide it conformably to the principles of law which I have laid down, and to the evidence, as the evidence, in your judgment, may justify you.
Mr. McCarter. Will the court permit me to call its attention to one point which I do not think was presented? There is nothing in the plaintiff’s declaration complaining of default in the company for widening the openings at the east end to justify a recovery for that cause, if the jury think the damages were due to that. The complaint here is that the Le-high Valley Railroad Company continued a nuisance created by the Easton & Amboy Railroad Company. That is the whole complaint. It does not deny that the increase of the opening was done by the Lehigh Valley
The Court. That is the description contained in the declaration, and although there may lie some plausibility in your suggestion, I think I will decline to instruct the jury that way; that is, that the declaration sots forth as the ground of the injury the defective construction of the bridges over tile Rarilan river, and does not refer at all to the change made in .the width of those bridges along that bank over the brooks. But the ease has been tried, and the whole evidence has been directed to that point, as if the injury resulted mainly from the widening of the arches or the water-way of those bridges, and I would like the jury to take that evidence and decide upon it. The case is with you, gentlemen. The jury will understand from that, that at the.time of the institution of the suit the plaintiff, as is shown by the declaration, regarded the injury as resulting from the defective construction of the bridge over the Raritan, and made no reference to what is very much more important, as appears by the evidence of the experts, and by argument of counsel; but Iwill not refer to that any more.
The jury returned a verdict for plaintiffs for $4,000.
ON RULE TO SET ASIDE VERDICT.
Before McKennan and Butler, JJ.
Is the verdict clearly against the weight of the evidence? This alone, of the several questions embraced in the reasons assigned for setting aside the verdict, need be considered. The principal question on the trial related to the sufficiency of the Raritan bridge to vent the water of the stream, in time of flood. The defendant had an unquestionable right to change the bridges or culverts over the small stream eastward, as the jury was instructed, and the only legitimate reference that could properly be made to what was done there, was in explanation of the fact that the principal damage is of recent date. These changes could not be made a cause of complaint. In considering the sufficiency of the bridge (or rather whether the company had failed in duty by erecting it as it did) the necessities and interests of the railroad, as well as those of the land-owners, must be borne in mind. These considerations involve questions of safety to the public and company, and also of cost. Where the situation is such that the construction of a proper bridge, suited to the circumstances, must necessarily obstruct the stream, to some extent, the land-owners must submit to the obstruction, and the company must make compensation for the damages likely to ensue, as a part of the consequences of building the road. Where a stream, flowing through low7 lands, spreads out, when flooded, to groat width, many times its usual size, a railroad company, crossing it, is not necessarily required to erect a bridge of corresponding length; nor resort to trestles instead of embankments. What should be done under such circumstances must be