Town of Troy v. Cheshire Rail Road

Bell, J.

In general, towns are not. the owners of highways, though there unquestionably may be cases where the towns, instead of a mere easement, have thought it judicious to purchase the fee of the land itself. We are not aware of any rule of law, or considerations of expediency, which forbid -this to be done, while there are many cases, in which it may be very sound policy for towns to make such purchases, where the land can be obtained. Copp v. Neal, 7 N. H. Rep., 275. By the modes of laying out highways, prescribed by the law, by. dedication made by individuals, and by prescription, the public acquire an easement merely ; a right to use the road for the purpose of passing and re-passing. Bro. Ab., 140, b., (2 E. IV., 9 ; 8 E. IV., 9; 8 Hen. VII., 5 ;) Makepeace v. Worden, 1 N. H. Rep., 16; Cortelyou v. Van Brunt, 2 Johns. Rep., 363; Chatham v. Brainard, 11 Conn. Rep., 60; and a right to use the stones, gravel, and other materials, composing the land, for the repairs of the road, in a reasonable manner, State v. New-Boston, 11 N. H. Rep., 407, and cases there'cited. The title to the soil remains in the owner, Makepeace v. Worden, &c., above cited; and he retains, generally, the right to make any use of his land, and to excercise any rights over it; and to derive any income, or profits from it, which he can do without interfering with the public use. Avery v. Maxwell, 4 N. H. Rep., 37; Mills v. Stark, 4, N. H. Rep., 512 ; Perley v. Chandler, 6 Mass. Rep., 454; Stackpole v. Healey, 16 Mass. Rep., 33; Jackson v. Hathaway, 15 Johns. Rep., 447; Barclay v. Howell, 6 Pet. Rep., 498 ; Davaston v. Payne, 2 H. B., 527. Presumptively, this is the state of the public interest, and the condition of the private rights,.to all land occupied for public highways; and any length of occupation of land, for a public way merely, raises no presumption of title to the soil; Copp v. Neal, 7 N. H. Rep., 275 ; Green v. Chelsea, 24 Pick. Rep., 79 ; Chatham v. Brainard, 11 Conn. Rep., 60 ; and its occupation, for other uses, as for watering places, for public landings, for water pipes, and other like purposes, only tends to shew the fact of a similar easement, and not of ownership of the land.

Towns in which roads are laid out, for certain purposes represent the public, but they are not the public. The whole community, in whatever towns they may abide, have an equal interest and title to all the privileges and advantages of the public ways, and have equal right to complain of any infringement. The State v. Hampton, 2 N. H. Rep., 25 ; Ivison v. Moore, 1 Ld. Raym., 486. The town itself and its inhabitants, have no greater interest, either severally or jointly, in the easement or right of passing upon the highways, than the residents of any other town, or the traveller who comes from another State. And where the town owns the soil itself, its rights, as such, to the land are simply those of other land owners. The right of the public, to pass and re-pass, draws after it the right to require the road to be kept in repair by those upon whom the law has placed that burden, and the right to require the removal of all obstructions to its use. Any neglect, of those who ought to repair, to the common injury, and interruption to the common right of passing, is a public wrong, and to be punished as such, upon indictment by the grand jury, or information by the public prosecutor; The State v. Dover, 9 N. H. Rep., 468; The State v. Dover, 10 N. H. Rep., 394; but neither of these is the foundation of any private action, or claim for damages, unless it is the cause of special injury, or damage to the claimant, not common to himself and others. But wherever the neglect of the duty to repair, or any obstruction to the right of passing, improperly caused by any person, is the cause of any special injury to any individual, or to any corporation, the law gives to the party so injured, an action for'the redress of the wrong done to him. Farnum v. Concord, 2 N. H. Rep., 392 ; Pierce v. Dart, 7 Cow., 609, and cases there cited; Stetson v. Faxon, 19 Pick. Rep., 147, and cases there cited; Ivison v. Moore, 1 Ld. Raym., 486; 4 Black. Comm., 167. On this principle, actions are constantly maintained against towns, and turnpike and bridge companies, for injuries sustained by travellers, their animals, carriages and loading, from the want of suitable repairs of their roads, and bridges; and against individuals, for like damages, sustained by reason of pits, improperly dug in the highways, or by leaving in them, stones, or lumber, or carriages, or by other obstructions improperly left in the highway. Towns ma$ be the owners of property used upon highways, as an imals and carriages, or property carried upon them, and as such, they have the same rights, ■ and the same remedies for such injuries, against other towns, corporations or persons, as other persons or corporations would have in alike case. Besides these rights and remedies, towns have other rights and remedies, peculiar to them, growing out of the duty to make and keep in repair a suitable path for the public travel. By our law, the duty of making and repairing highways is imposed upon towns. They are authorized to raise necessary taxes for this purpose, and to appoint necessary officers to superintend the performance of this duty; and are subjected to fines, and liability for damages for neglect. Besides the right to use, for the purpose of such improvements and repairs, the materials, which the road itself affords, the proper officers are authorized to procure, at the expense of the town, such lumber and materials as are necessary for the repairs required to be made. Bev. Stat., tit. ix. And, as bridges are deemed to constitute a part of the public highways, except in those cases where they have been erected by private corporations, and as many highways, for great distances, furnish but a small amount of the materials, the expense incurred by many towns, on this account, is of no inconsiderable amount. Being thus required, by law, to use the necessary materials, to build roads and bridges, either furnished by the land or at their own expense, and being bound to support such roads and bridges, the law necessarily gives them a qualified property and interest, in the path, or bridge, they have constructed. The State v. Hampton, 2 N. H. Rep., 25 ; Harrison v. Parker, 6 East., 154. This is an interest, entirely distinct from the right of way, of passing and re-passing, and of making and repairing the road, acquired by the public. The right of the land-owner is not only subject to the public easement, but it is necessarily subject to the rights acquired by the town, in the roadway and bridge, constructed by their labor, and at their expense, from materials furnished by themselves, directly, or indirectly paid for by them, in the damages awarded against them, upon the laying out of the way. The ordinary rule is, that where materials or structures, are added or annexed to land, whether by the owner, or others, they become, by such annexation, a part of the land and the property of the owner of the land. 2 Kent’s Comm., 362 ; Kittridge v. Woods, 3 N. H. Rep., 505; The State v. Elliot, 11 N. H. Rep., 542. But, in this case, as in many others, where the person, who makes the annexation, has acquired the right so to annex them, for his own purposes, they become annexed to the land and the properly of the land-owner, only sub modo, and in a very qualified degree, and subject to the qualified interest and right of the person, who put them there. Thus the person, who should acquire the right by purchase, or by prescription to support his building by timbers resting upon another’s wall, or to carry water to his house, in pipes carried through another’s soil, would not, by so placing such timbers, or laying such pipes, attach them to the land, so as to lose his right to them, or to give to the land-owner any right to them, except such as coiild be exercised without interference with the uses of the party who placed them there. 2 Kent’s Comm. 437. And if the owner of the land, and, still more clearly, if a stranger, should destroy them, or injure them, or so interfere, either with them or with the land where they are placed, as to destroy or impair their usefulness, he would thereby make himself hable for any damages the party placing them there might sustain ; and among those damages would be the loss of the qualified property he still retained in them, which, it would be at once seen, would be, from the nature of the several interests in them, nearly, if not quite, the entire value. When a new highway is laid out in a town, and the burden of making and maintaining it is imposed upon them, the town acquires, by necessary inference from the provisions of the law on the subject, the right to enter upon the property condemned, and to do there, in spite of the owner, all such acts as are necessary and proper to be done towards making the roadway, culverts, and bridges, and to use and permanently appropriate to their own use, for the single purpose of constructing and repairing their road, all materials embraced in the appraisal of the land; and to use, and annex to the land, all such materials as they find it necessary to procure for the purpose of constructing causeways, culverts, or bridges; and to remove, either to other parts of the roadway, or other suitable places of the highway, all such earth, stone, or other materials, as they find it necessary to excavate, in order to give, or preserve, a suitable grade, or path for public travel. These structures and excavations, as they are bound to maintain and preserve, for the public safety and convenience, they of course acquire or retain, an interest and ownership in, as being an indispensable requisite to the performance of their duty, upon the general principle, that when the law gives to any one a right, or imposes on any one a duty, it implicitly gives everything, which is necessary to the enjoyment and exercise of that right, or without which that duty cannot be performed. The roadways, culverts, bridges, and all other structures, erected by a town as part of a highway, are the qualified property of the town, upon the principle, before suggested, that they are annexed in pursuance of a right, for the purposes of the town.

The interest of the town is qualified, because, being annexed to the freehold of another, he has the general and ultimate ownership, subject to the right of the town, as owners of the only really valuable interest, and to the easement of the public. Harrison v. Parker, 6 East., 154; 2 Smith, 262. The position of the town is closely analagous, nay, almost identical, as to this property and interest, to that of the proprietors of turnpikes and toll-bridges, in similar cases. These are constituted, by charters, corporations, with power to erect a turnpike, or a bridge, with suitable approaches, and to take suitable tolls from all persons passing over them. In case there should be occasion, they are authorized to apply to a suitable tribunal, to lay out a way across the lands of individuals, or across a river, and to assess the damages; upon payment of those damages, they are authorized to enter upon the land, and build their road and bridge, and made liable for then-support. Notwithstanding the condemnation of the land for the road, the former owner remains the general owner, as before; but it is now subjected, first to the easement of the public, the right of travelling upon the turnpike, or across the bridge upon the payment of tolls, (Commonwealth v. Wilkeson, 16 Pick. Rep., 175; Harrison v. Parker, before cited;) and, second, to the right and easement of the turnpike, or bridge company, to enter upon the land, and to do there all necessary acts, required for building, and afterwards maintaining, their road; and among these to annex such stone, lumber and other materials, to the land, as are necessary fqr these purposes. Robbins v. Boxman, 1 Pick. Rep., 122; Adams v. Emerson, 6 Pick. Rep., 57; Tucker v. Tower, 9 Pick. Rep., 109 ; The State v. Hampton, 2 N. H. Rep., 25 ; The State v. New-Boston, 11 N. H. Rep., 410. These articles, thus annexed, may be theoretically, the property of the landowner, because of their annexation to the land, of which he still remains the general owner. Practically, they are the property of the turnpike, or bridge company, though of course subject to the public easement, because they are the only persons who can exercise any rights of ownership, or reap any of the benefits or profits of ownership.

Nobody can doubt, that for any injury done to a turnpike, or toll-bridge, whether by wrongful act, as by ploughing up the road, or burning, or tearing down the superstructure of the bridge, or demolishing the piers, or by negligent conduct, as by suffering logs to jam against a bridge and sweep it away, the turnpike or bridge company, may maintain their action, and recover such damages as they have sustained.

Probably, for many purposes, it may be found, that the rights of railroad corporations must be similar to, those of turnpike and bridge companies.

We think it clear, that there is no substantial difference between the rights'of such corporations, to the roads and bridges they have built, and those of a town. If the bridge, erected by the town, and which they are bound to maintain, and which they have the right to keep there, so long as it answers the purposes of the public, is destroyed, either wantonly or negligently, by others, the town may, upon what we think are unquestionable principles of common law and common justice, commence their suit against the wrong-doer, and recover all such damages as they have sustained by his wrongful act, among which would be included the actual value of the materials of the bridge, as they then stood. And if the wrong was of a character, which rendered it more difficult afterwards to erect or support a bridge there, as if the banks were washed away, so as to increase its length, or the bed of the river excavated, so as to render it more costly to construct new foundations, or to compel the town to seek a new location, the town should recover such sum as would fairly indemnify them for the loss, they thus sustain.

These principles are of course equally applicable to any injury done to a highway, as to a bridge.

Having thus stated, what we conceive to be the state of the law, independent of statute provisions, we turn to the statutes, which are supposed to have a bearing upon this case ; and first the charter of the defendant corporation; the sixth section of which makes part of the case.

.The'first clause of this section, as is well remarked by the plaintiff’s counsel, merely forbids the building of the railroad in such a manner as may impede or obstruct the use of any highway it may intersect or cross. In that respect, it is simply a confirmation of the clear principles of the common law. The other clauses, merely relate to the case where the railroad company may raise or lower a highway, so that the railroad may pass under or over it. There is nothing in the case, which shews that any part of this section has any bearing upon this case. It does not appear that here is any intersection, or crossing of the highway by the railroad, or any raising or lowering of it, to bring it within either of the clauses of this section, unless it be of Cobb’s road, described in the sixth and seventh counts. As to these, the sixth and seventh counts, the case is not brought within the terms of the statute, and the same remark is true as to all the grievances, if the cases are really such, that they are properly governed by this statute.

In any case clearly within the provisions of this section, the party injured would be confined to his remedy under the statute. Woods v. Nashua Manf’g Co., 4 N. H. Rep., 527; Lebanon v. Olcott, 1 N. H. Rep., 339; Stevens v. Mid. Canal, 12 Mass. Rep., 466; Spring v. Russell, 7 Greenl. Rep., 273 ; Calking v. Baldwin, 4 Wend. Rep., 667 ; Aldrich v. Cheshire Railroad, 1 Foster’s Rep., 359. But it is apparent that this charter is limited, in this section, to a single object. If the crossing is not made satisfactory, the selectmen may obtain the opinion of the road commissioners, and if the railroad company do not alter the crossing conformably to that opinion, they may make the alteration themselves, and recover the expense by suit.

That is clearly not the case. For any other case, or for any other grievance this section makes no provision, and they remained as at common law.

The statute of July 3,1847, chap. 486, was apparently designed to provide a remedy, in cases of this kind. It provides that, “ if any railroad corporation, in constructing and maintaining their railroad, shall, in altering any 'highway, or bridge, for the purpose of constructing their railroad over, under, or near such highway, or bridge, or for any other purpose, cause any inconvenience, or injury to the lands, buildings, or rights, of any person, or persons, or of any corporation, public or private, or shall continue any such inconvenience or injury, already existing, for the space of sixty days, after notice of the same, in writing, is given to some officer of such railroad corporation; or if any railroad corporation shall, in constructing or maintaining their railroad, throw any obstruction upon, or cause any obstruction, or injury to any highway, bridge, turnpike, or private way ; or permit any such obstruction or injury, already existing, to continue for the space of sixty days, after notice of the same has been given as aforesaid, in any such case, the person or persons, or corporation, shall have, and maintain, an action on the case, and recover reasonable damages for the injury done.”

There is a proviso which allows the railway company to procure anew road asa substitute.

The only change, introduced in the common law, by this statute, is that contained in the proviso, which allows the company to procure another road, and the clause which gives the right of action after the expiration of sixty days, after notice is given. There is no question here, as to any substitute road, nor in relation to the sixty days’ notice which is alleged in all the counts; ■ and the case stands, therefore, substantially as at common law.

We have carefully examined the instructions of the court relative to the rule of damages ; and they seem to us, to express the rule with precision and correctness.

The court was desired to instruct the jury, that the plaintiffs could not recover for any damages, not specially alleged in their writ; nor for anything but expenditures actually incurred, and which they had been compelled to pay; nor for the value of materials; nor for prospective damages ; nor for mating the road less convenient, if not actually insufficient. We have already expressed our views, as to the right of the town to recover for materials. And the charge of the court as to the point of the inconvenience of the road, was in accordance with the request of the defendant’s counsel. The question, as to the right to recover prospective damages, and to recover any damages, except for money actually expended, is deemed important by the defendant.

It is evident, that a recovery in this action, is a bar to any future action for this cause. In cases of nuisance, the injury may be of two hinds: first the direct injury caused by the act complained of, and second, the injury which may be afterwards occasioned by the unauthorized continuance of that causo. The declaration, in this case, alleges injury from the first construction of the railroad, and from its continuance to the date of the writ. The plaintiff can, in no event, recover for any cause of action, not included in his writ; and, on this ground, he can recover for no damage not sustained, when his action is commenced” For any future damage, he may recover in an action based upon the continuance of the injurious cause ; and in such action, it would be no answer to say, that the damage now claimed has been recovered in a former suit, because the writ in that case, warrants a recovery, only for damages sustained previous to its date. The principle, for which the defendants contend, is sound, and the only question which can arise here, is as to the ajjplication of that principle. The damage done at the date of the writ, is to be compensated, and that only. If that damage consists in the exposing of the party, to expenditures of money, the test is not the time when those expenditures are made, for they may be paid at once, or their payment delayed, without, in any way, affecting the rights of the parties. The question is not, when was the money paid, whether before or after suit, but was the liability to those expenditures occasioned by the acts complained of, in the writ, or was it by the continuance of the same acts, or of the state of things produced by those acts, after the action was brought ? If they are the result, and consequence of the wrongful acts complained of, they are to be recovered in that action. If they result, not from the wrongful acts, but from the wrongful continuance of the state of facts produced by those acts, they form the basis of a new action.

There may, of course, be cases where it may be difficult to draw the line, but, it is apprehended, they will not be numerous. Wherever the nuisance is of such a character, that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, there, the damage is an original damage, and may be at once fully compensated, since the injured person has no means to compel the individual doing the wrong, to apply the labor necessary to remove the cause of injury, and can only cause it to be done, if at all, by the expenditure of his own means.

But where the continuance of such act is not necessarily injurious, and where it is necessarily of a permanent character, but may, or may not be, injurious, or may, or may not be, continued, there the injury, to be compensated in a suit, is only the damage that has happened. Thus the individual, who so manages the water he uses for his mills, as to wash away the soil of his neighbor, is liable at once for all the injury occasioned by its removal, because it is, in its nature, a permanent injury ; but if his works are so constructed, that upon the recurrence of a similar freshet, the water will probably wash away more of the land, for this, there can be no recovery, until the damage has actually arisen, because it is yet contingent, whether any such damage will ever arise. A person erects a dam upon his own land, which throws back the water upon his neighbor’s land; he will be answerable for all damage which he has caused before the date of the writ, and ordinarily for no more, because it is, as yet, contingent and uncertain, whether any further damage will be occasioned or not; because such a dam is not, of its own nature, and necessarily, injurious to the lands above, since that depends more upon the manner, in which the dam is used, than upon its form. But if such a dam, is in its nature of a permanent character, and from its nature must continue permanently to affect the value of the land flowed, then the entire injury is at once occasioned by the wrongful act, and may be at once recovered in damages. In one of the cases, which arose from the building of the great canals of New-York, the case was that a high dam was erected, upon the falls of the Hudson, for the purpose of diverting the waters of the river into a feeder for the canal; the lands of an owner above, were buried twenty feet under water, and their value to him, of course, entirely destroyed; the work was in its nature and design permanent. There, it would be clear, that the party injured would be entitled to recover the entire damages he had sustained, and must sustain in a single action,. in truth, substantially the entire value of his property. And the decision of this court, in the case cited by the plaintiff’s counsel, Woods v. Nashua, Manf'g Co., 5 N. H. Rep., 467, is in entire accordance with this view. In such a case, it might be suggested, that the actual loss he had sustained was only of the use of his property, to the date of the writ, and that he, and those who came after him, might bring their actions, from year to year, for any injuries they might afterwards sustain; but in such a case we entertain no doubt, that, consistently with the rules of law, the plaintiff might recover the entire property lost.

To apply this principle to the case before us; the town is made, by law, chargeable with the duty, and expense of maintaining the road, which this railroad company have in part destroyed, and in part obstructed, according to the declaration; they have a qualified interest in the roadway and bridge, which they have constructed, and have the right to maintain, and in the materials, of which they are composed, and are entitled to recover the value of that roadway and material. The railroad is, in its nature and design, and use, a permanent structure, which cannot be assumed to be liable to change ; the appropriation of the roadway and materials to the use of the railroad, is therefore a permanent appropriation; the use of the land set apart to be used as a highway, by the railroad company for the use of their track, is a permanent diversion of that property, to that new use, and a permanent dispossession of the town of it, as the place on which to maintain the highway. The injury done to the town is then a permanent injury, at once done by the construction of the railroad, which is dependent upon no contingency, of which the law can take notice, and for the injury thus done to them, they are entitled to recover at once their reasonable damages. Those damages are, first, the value to them, of the property and rights, of which they have been deprived, for the use and purpose, to which they are by law, bound to apply them. Assuming, then, that they were sufficient to meet the requirements of the law, and the public wants for a highway, their value is to be measured by the cost of the new ground, they are bound to furnish to the community for a way, if it will he less costly, and more reasonable, having reference to the accommodation of the public by the highway, and the railway to procure new ground, raththan to build the highway over or under the railway; by the costs of the materials, which will be' requisite to make a road, which will as well meet the requirements of the legal duty of the town to the public in relation to the road, as the old, and the expense of applying those materials to that use, in the new road, and the fund that will be permanently required in all future time, to defray the increased expense of supporting and maintaining the new road in suitable repair, beyond what would have been necessary for tbe old road. These ingredients go to make up the present value of the old road, of which the town has been deprived, and they are to be recovered, not as prospective damages, but as a compensation for tbe injury the town has now sustained. When these expenses shall be paid by the town, or whether they shall ever be paid, is a question, with which • these defendants have nothing to do. If, from change of circumstances the town should be relieved from the burden of maintaining the road, the amount paid by the railroad will be applied, as in equity it should, to replace to the town the costs of the land for the road, and the expenses of making it, long since paid by them.

These views are, but in different terms, tbe rule of damage laid down by the learned judge who tried this cause ; and with which, upon careful examination, we are entirely satisfied.

There remains, then, the question, arising upon the motion in arrest of judgment, for a supposed defect of the declaration, that it is not alleged, that the town had been compelled to pay any damages, or had expended any money. The distinction tar-ken in 2 Greenl. Ev., 209, § 254, to which we are referred by the defendants, is thus stated: “ All damages must be the result of the injury complained of. Those which necessarily result, are termed general damages, being shown under the ad damnum, or general allegation of damages at the end of the declaration. But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages, which the law does not imply, and therefore, must be specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial.”

This note is found in Chitty’s Pleading, 886, and is sound beyond question. Does it apply here ? That depends upon the view taken of the damages to be recovered. If the amount, which the town has paid, or may be compelled to pay, is to be allowed as special damages, naturally perhaps, but not necessarily resulting from the defendants wrongful act, then the motion in arrest may prevail, if no other damages, but those of this description exist; but if some damages necessarily result, in judgment of law, to the town from the obstruction of the highway, as an injury done to their rights, then the plaintiff may well recover something for those damages, however small, and the declaration is well enough. Upon this point, we have already expressed our views, and as we do not adopt the opinion of the defendant, that the town have no interest or right, in the highways or bridges they build and support, but have merely a duty to perform in regard to them; this motion, in our judgment, is not well founded.

Judgment on the verdict.

Case Details

Case Name: Town of Troy v. Cheshire Rail Road

Court Name: Superior Court of New Hampshire

Date Published: Dec 15, 1851

Citation: 23 N.H. 83