Walker v. Old Colony & Newport Railway Co.

103 Mass. 10 | Mass. | 1869

Wells, J.

In this case the premises affected by the location of the railroad consisted of a dwelling-house and house lot of about half an acre of land. A part of this land was taken; and the question raised is, whether the jury might consider the depreciation of the value of the estate by reason of the proximity of the railroad to the dwelling-house, and the incidental effects of the running of trains thereon. These incidental effects are the natural and inevitable consequences of the exercise of the franchise which the legislature has granted to the corporation. They do not therefore constitute a public nuisance, and, independently of the taking of land, they cannot be made a ground for the recovery of damages, as for a private injury. See Presbrey v. Old Colony & Newport Railway Co., ante, 1.

But, when land is taken, the owner is entitled to compensation for such injury to the value of his whole lot as is occasioned by the appropriation of a part of it to the uses for which it is taken. Such an appropriation to the uses of a railroad may clearly be more injurious to the whole lot, aside from cuts and embankments, than would an appropriation for a highway or a public park. One of the valuable incidents of the ownership of land is the right and power of exclusion. So far as the value of the property, depending on this right and power, is affected by its abridgment, compensation therefor should be included in the damages. But for the authority conferred by its franchise, the corporation might be held liable in damages, directly, for injuries to property or disturbance in its occupation, in the manner and by the causes relied on by the petitioner in this case. Wesson v. Washburn Iron Co. 13 Allen, 95. By taking a part of the petitioner’s land the corporation is enabled to exercise its franchise so much nearer to his house, and, it may be, much more injuriously. So far as it is more injurious, to that extent the damages for taking the land should be increased. The increase is not additional damages for the probable results of the exercise of the franchise, but compensation for the greater injury to the whole premises involved in the character of the purpose for which a part is taken.

The ruling, requested by the respondent, that depreciation of value “ arising from the proximity of the road and running of the trains ” should be excluded from consideration, in the assessment of damages, was properly refused. Such depreciation should be considered, so far as it is due to proximity secured by means of taking a part of the petitioner’s land, and would not have resulted but for such taking.

On the other hand, the testimony of the witness offered by the petitioner and admitted, as to “ how much in his opinion the estate was depreciated by the construction of the road;” and the direction to the jury “ that they might assess damages for these causes as well as others,” gave too broad a range to the estimate of the damages to which the petitioner was entitled. His lot contained but half an acre. If the road had been constructed close to his land, but without taking any part of it, he would have had no right to recover for any depreciation in the value of his property by reason of the several causes to which these rulings relate. It is only so far as the annoyances and inconvenience arising from these causes are increased by reason of the taking of a part of the land, that they are to be considered, as an incident of such taking, in estimating the damages or depreciation of value. The petitioner’s lot did not, apparently, give him that right and power of exclusion to such an extent that the whole depreciation in the value of his property by the construction of the road can be supposed to be due to the taking of a part of his land and the causes directly affecting the premises. It is proper, therefore, that the case should be submitted to another jury. Eldredge v. Smith, 13 Allen, 140.

The injury from surface water turned back by the embankment of the railroad, and made to flow upon the petitioner’s land, or prevented from escaping therefrom in the usual mode, was proper for the consideration of the jury ii. estimating his damages. Where there is a public, or even, as it would seem a private right or easement of drainage, it is the duty of the railroad corporation to make suitable provision for it; and their failure to do so subjects them to an action of tort, but not to damages upon complaint. Proprietors of Locks & Canals v. Nashua & Lowell Railroad Co. 10 Cush. 385. Perry v. Worcester, 6 Gray, 544. But no such duty exists in regard to surface water. The cuts and embankments and necessary gutters of the railroad track will unavoidably modify the flow of surface water, and sometimes cause damage by keeping it back or projecting it in large quantities upon lands adjoining the road. Injuries to land from such causes would seem clearly to fall within the class of effects which have been held to afford ground for the assessment of damages under the statute. Dodge v. County Commissioners, 3 Met. 380. Babcock v. Western Railroad Co. 9 Met. 553. Parker v. Boston & Maine Railroad, 3 Cush. 107. Chapin v. Boston & Providence Railroad Co. 6 Cush. 422. Tower v. Boston, 10 Cush. 235. Brown v. Providence, Warren & Bristol Railroad Co. 5 Gray, 35. Curtis v. Eastern Railroad Co. 14 Allen, 55.

The provisions of Gen. Sts. c. 63, §40, authorizing the commissioners to require the corporation to construct and maintain such drains, culverts, etc., “ as they judge reasonable for the security and benefit of such owners,” imply that the landowners are to be protected in this respect at the expense of the corporation. If protection is not secured by means of such an order, the only indemnity which the landowner can have must be by the assessment of compensation in damages. Turner v. Dartmouth, 13 Allen, 291.

Upon the ground first considered, the decision of the superior court, setting aside the verdict, was right.

Exceptions overruled.