Lyman v. Dorr

1 Aik. 217 | Vt. | 1826

The opinion of the Court was delivered by

Royce, J.

This action of trespass is brought as well for the erection and continuance of the toll-house and gate, complained of in the former suit, as for that of the bridge itself, with its abutment and piers. It may, therefore, be convenient to speak separately of these two causes of complaint. And first, as to the bridge, with its abutment and piers.

The whole space occupied by the bridge, was part of the turnpike road, until that corporation was dissolved in A. D. 1819; for it cannot be admitted that their neglect to replace the. bridge after it was destroyed, in A. D. 1815, operated to extinguish their interest in this particular spot, while they remained entitled to all the rights, and subject to all the liabilities of their grant, in every other part of the road. The building of this bridge, in A. D. 1818, by them, or the White River ®rldgeCompany with their assent, could therefore be no trespass to the plaintiff, whose title is expressly made subject to all the rights of the Turnpike Company. It is contended, hpwever, that upon the dissolution of the Turnpike Corporation, in 1819, the locus in quo, was discharged from the easement, and that the continuance of the bridge, since that time, is a trespass for which this action will lie. Without deciding whether, in any case, the continuance of the bridge could become a trespass, if lawfully erected at first, it is fcertain the mere act of building it, being a lawful act at the time, cannot subject these defendants in trespass, and no subsequent act of theirs, either as individuals, or members of the Bridge Company, is shown, to make them answerable for what has since happened. And, besides, were-it necessary.to determine the character of the turnpike road, since the repeal of the. grant, it would probably be considered a publick highway, in which it could not be unlawful to continue a necessary bridge, whether the same was publick or private property. It results,..therefore,.¿hat as to.the bridge, no trespass is shown to. have.been, committed by these, defendants.

Charles Marsh and Titus Hutchinson, for the plaintiff. Geo. E. Wales, J. IL Hubbard, and H. Everett, for the defendants.

The trespass in erecting; the toll-Souse an'd “gate, .apd continuing the same until January 27, 1819',' has-i been satisfied: the former action on the case, against the Company, being equivalent to an action of trespass, against these defendants, as the plaintiff could no have both. It is, therefore, for the continuance of these nuisances after that time, that this action is brought. And the question is, whether this new trespass is imputable to these defendants. When a person, in his owp right, and for his own benefit, commits a trespass, by erecting a nuisance on another’s land, it is but reasonable that he should remain liable for the continuing injury. And on the other hand, if he committed the original trespass as an agent, and for the-benefit of another, the continuance should not be regarded as his act, but that of the principal. In this case, the defendants, though at that time members of the Bridge Corporation, must be taken to have acted, originally, as the servants and agents of the Company. The continuance of the toll-house and gate, ought, therefore, to be deemed the act of the Company, and not of the defendants, as individuals; for they cannot be made liable for what has happened since the commencement of the former suit, except by showing that as individuals or members of the corporation, they have done some act affirming the continuance.

It being our opinion that no trespass is established against the' defendants, we have no occasion to consider that part of the case, which relates to the rule of damages.

New trial not granted.

Hutchinson, J. being of counsel, did not sit in this cause.