18 Barb. 80 | N.Y. Sup. Ct. | 1854
This is an. action brought to recover damages of the defendants for the burning of the plaintiff’s woods and fences, by sparks communicated from the defendants’ engines while running upon their road. The evidence upon which the plaintiff seeks to charge the defendants with,
It appears from the evidence in the case, that the plaintiff was in the possession of the lot in question under a written contract of purchase from Darius Maples, the owner in fee. The plaintiff by this contract of sale is deemed the equitable owner of the premises ; (6. Ves. R. 349, note A. 15 id. 138. 2 Story's Eq. Jur. p. 628, sec. 789, 790, 1212. 6 John. Ch. R. 403. 3 id. 316. 1 Barb. S. C. R. 495. 11 Paige, 359. 6 Barb. R. 571;) and as such is entitled to maintain this action. The case of Gardner v. Heartt, (2 Barb. S. C. Rep. 165,) is in point, to show that, in such a case, title is not necessary. The law is well settled that the vendee in possession, being the equitable owner of the estate from the time of the contract for sale, must bear any loss which may happen to the estate between the agreement to purchase and the conveyance. He must pay the purchase money, although the estate itself be destroyed.
The next and more important question to be determined .in this case is, did the referee err in holding the defendant liable upon the evidence in the case ? It appears from the case that Maples conveyed to the defendants a strip six rods wide, through these premises, for their railroad track, being about six acres of land, for the price of $1600. The highest estimate placed upon the value of these lands with the timber thereon, by any of the witnesses, is $10 per acre. It is therefore fairly to be inferred that the defendants paid for their right of way all damages which could be legitimately claimed for a right of way for such purposes. The statute under which the defendants were authorized to acquire lands for their road, provides, in terms, fox-ascertaining the damages which the owner of such lands or i-eal estate will sustain by the occupation thereof by the said corporation. (Laws of 1832, ch. 224, § 9.) The language of this 'statute is broader than the Massachusetts statute ; (R. Stat. ch. 39, § 56,) under which it has been held that the exposure to fire from the engines of the company, and the increased insurance upon buildings situated near the line of the road, are proper subjects to be taken into consideration, in estimating the damages for land taken for a railroad. (2 Metcalf, 147. 3 Cush. R. 107.) Be that however, as it may, under the statute, when the damages are assessed, I take it to be very clear that as Maples owned all of these lands at the time ho conveyed this strip to the defendants, and as he conveyed a strip, the value of
This case was tried before the referee upon the assumption that the law casts upon the defendants the necessity of keeping a watch and a sufficient police upon their road to protect the interests of property holders along the line of the road from injuries of this character, and we have considered the case upon this assumption.. We do not mean, however, to express any opinion upon that question, but to leave the question open.
Judgment reversed.
Gray, Shankland and Mason, Justices.]