New Orleans, Baton Rouge, Vicksburg & Memphis Railroad v. Brown,

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Notebook

| Miss. | Oct 15, 1886

Campbell, J.,

delivered the opinion of the court.

The verdict should have been set aside. There is nothing in the evidence to support it. The appellant did nothing but what it had the right to do, except the trivial and immaterial breaking over the line of its right of wáy at a few points, and for which no more than actual damages are recoverable, and the court should have told the jury so, and should not have submitted the question of punitive damages for its consideration. The plaintiff is not entitled to recover anything from the defendant fordoing what it had the right to do, no matter why it may have done it, and the effort to distort the declaration of O’Brien into evidence of malice should have been defeated by the court. Mr. Brown is not entitled to damages because of the unsightliness of his plantation, or its supposed unhealthiness from standing water, or the inconvenience of crossing over by reason of the pits made in the excavations on. the right of

*483He must suffer uncomplainingly the natural result of the proper exercise by the railroad company of its right, as purchaser and owner of the right of way over his land, to make such use of it as it saw proper under its charter and within its provisions. For all this he is supposed to have been paid in the proceedings by which his land was condemned for the right of way. He was entitled to this, and it must be assumed that he got all he was entitled to.

For anything wrong or improper done by the railroad company to the injury of Mr. Brown he should recover, but for nothing else.

An unintentional, trivial, and insignificant trespass should not be made a pretext for fastening a responsibility for doing lawful acts. Actual damage done by some wrongful act of the railroad company is all that Mr'. Brown can recover for upon the case made by this record.

Without passing on the instructions in detail, some of which are wrong, we reverse the judgment, and remand the case for anew trial.