18 N.H. 547 | Superior Court of New Hampshire | 1847
At the December term of this court in 1845, in an action upon the case between these parties, we held that the act of the defendants, in raising the grade of the highway and building the bridge over their road, at the intersection of their railroad with the highway, having been done in pursuance of a public duty imposed by their charter, and by the statutes of the State, could not be treated as a wrong done to the plaintiffs, and that the action, therefore, could not be maintained. 17 N. H. Rep. 519.
Since that time the legislature has passed an act, it is said on the application of the petitioners, providing that where the property of individuals shall sustain consequential damages by reason of the construction of such bridges, or shall have sustained such damages by the construction or continuance of such bridges, and for which the owners have not been compensated, the road commissioners may hear the parties and make report, as in the case of damages sustained by laying out highways, and assessment of damages may be made, on petition for that purpose, by the court of common pleas. N. H. Laws, ch. 835, sec. 4.
This petition is founded upon that statute, and the terms of it are broad enough to cover this case. If the statute may lawfully be applied to this case, the petitioners are entitled to the relief they seek. The only question is w'hether the statute, if so applied, would not be a retrospective law for the decision of a civil cause, and thus fall within the express prohibition of the constitution, being also in violation of the general principle which forbids the legislative department to impose a new
The charter of the defendants, and the laws existing at the time when the bridge was built, required nothing of the defendants in relation to this subject matter, except tbe building of the bridge and the raising of the embankment, on the requisition of the town, and the keeping of what they had then constructed in suitable repair. No provision was made for the payment of any damages by the railroad corporation or by the town. Whether the legislature intended to leave such cases to the rule applicable to alterations of highways, when the alteration is injurious to the adjoining proprietor; Benden v. Nashua, 17 N. H. Rep. 477 ; or whether it was not within the contemplation of that body that damages could accrue to the owners of land who would, by reason of the building of such bridge, have a more secure passage across the railroad, is not material to this case. It is sufficient that at the time when the thing was done the defendants were performing a duty to the public, imposed upon them by the statute and by the action of the town, and that they thereby violated no duty, and incurred no liability to the adjoining owners, (in general principles it seems that the defendants would not be bound to keep the bridge and embankment in repair but for the express provision of the statute. 2 East 350, Rex v. Inhabitants of West Riding of Yorkshire. This case is not like 13 East 220, Rex v. Inhabitants of York. That ease turned upon the special terms of the act.
This process cannot, therefore, be sustained upon the ground that a duty existed on the part of the respondents to compensate the plaintiffs'for any injury done by the acts of the former, and that the statute of June, 1846, only gave a new and more perfect remedy.
Whether the town might have been required to pay the
It is sufficient that this case is between private parties. The defendants are not a public corporation in any sense which changes their liability from that which would rest upon individuals under similar circumstances. And we are clearly of opinion that the statute of 1846, however it may operate upon future cases, under the clause of the defendant’s charter by which the legislature is authorized to amend and alter it, cannot be applied to this case consistently with the provision of the constitution.
A statute which, operating upon facts existing at the time of the passage, attempts to impose upon one person a debt or duty to another, where there was no right and no obligation in existence before the passage of the statute, is a retrospective law for the decision of a civil cause, in violation of the constitution. 3 N. H. Rep. 477, Woart v. Winnick.
Petition dismissed.
