Page images
PDF
EPUB

a compliance with the requisitions of the law, the corporation succeeds to the rights of the town commissioners to make the repairs and alterations of grade which the public interest requires; and a person suffering damage from reasonable and proper repairs and grading, so made, cannot recover in an action therefor; although for any unreasonable use of its powers the corporation is responsible.1

16. In the State of New York, the inhabitants residing in any road district, may grade, gravel, or plank the road in such district, by anticipating the highway labor of such road district, for one or more years, and by applying it to the immediate construction of such plank or gravel road; and they will thereupon be exempt from the labor so anticipated and applied, except so far as their labor may be necessary to keep such road in repair. Any road so constructed or improved, will be a free road.2

5. Railroads.

§ 17. Railroads are distinguishable into two classes. 1st, railroads at common law; 2dly, railroads constructed under the authority of the legislature. The former species of railroad again subdivides itself into two, viz: 1, a simple rail or tramway, made by the owner of property on his own land for its more convenient use and occupation, or by several owners of co-terminus property, in pursuance of some mutual arrangement for that purpose between themselves; and, 2, a tram or railway constructed under a way leave, or grant, or right of way.3

§ 18. A railroad established and existing under an act or charter of incorporation, like a turnpike or a plank road, is a

1 Benedict v. Goit, 3 Barb. (N. Y.) Sup. Ct. R. 459.

2 Laws of New York of 1849, chap. 250.

[ocr errors]

3 Keppel v. Bailey, 1 My. & Keen, R. 547; Hemmingway v. Fernanden, 21 English Law Journ. Chan. 130; and S. C. 13 Sim. Chan. R. 228; and see Walford on Railways, 1.

public highway; but only to be used in a different mode.1 In Beekman v. Saratoga and Schenectady Railroad Company," Chancellor Walworth thus expresses himself: "It is objected, however, that a railroad differs from other public improvements, and particularly from turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles; that the company are under no obligation to accommodate the public with transportation, and that they are unlimited in the amount of tolls which they are authorized to take. If the making of a railroad will enable the traveller to go from one place to another, without the expense of a carriage and horses, he derives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike road at the same expense. And if a mode of conveyance has been discovered by which the farmer can procure his produce to be transported to market at half the expense which it would cost him to carry it there with his own wagon and horses, there is no reason why the public should not enjoy the benefit of the discovery. And, if any individual is so unreasonable as to refuse to have the railroad made through his land, for a fair compensation, the legislature may lawfully appropriate a portion of his property, or may authorize an individual or a corporation thus to appropriate it, upon paying a just compensation to the owner of the land, for the damage sustained."

1 Per Holroyd, J., in Rex v. Severn and Wye Railway Co. 2 B. & Ald. R. 646; and see Walf. on Railways, 151, 152.

2 Beekman v. S. & S. Railroad Co. 3 Paige, (N. Y.) Cha. R. 74.

3 And see Inhabitants of Springfield v. Connecticut River Railroad Co. 4 Cush. (Mass.) R. 572. The following are American cases of interest in relation to Railroads :- March v. Concord Railroad Co. (New Hamp.) reported in Law Rep. for Feb. 1856, p. 570; Taylor v. County Commissioners, 13 Met. (Mass.) R. 449; Porter v. Same, Ibid. 479; Wyman v. Lexington and West Cambridge Railroad Co. Ibid. 316; Bradley v. Boston and Maine Railroad Co. 2 Cush. (Mass.) R. 539; Same v. Same, 3 Cush. (Mass.) R. 91; Pennsylvania Railroad, 10 Harris, (Penn.) R. 356; Hudson River Railroad Co. v. Outwater, 3 Sand

§ 19. In one case1 a railroad was made under authority of Act of Parliament, by which the proprietors were incorporated, and by which it was provided that the public should have the beneficial enjoyment of the same. The company having determined to render one branch of the railroad impassable, caused the iron tram-plates, for the space of several hundred yards, to be taken up, and thereby destroyed that branch. An application was thereupon made to the proper Court for a mandamus to compel the company to reinstate the railroad. Holroyd, J., said: "It is a public highway, to be used in a particular mode." And all the Judges agreed, that for the offence complained of, the company had rendered themselves liable to an indictment. But because that remedy was not so effectual, as the one by mandamus, and as the Court were of opinion, that the circumstance of the corporation being liable to an indictment, was no objection to the granting of a mandamus, the rule to that effect was made absolute. And Abbott, C. J., said : "The writ should be to reinstate and lay down again, but not to maintain the tram-road."2

§ 20. Although an act of the legislature which authorizes the construction of a railroad between certain termini without prescribing its precise course and direction, does not, primâ facie,

(N. Y.) Sup. Ct. R. 689; Northern Railroad Co. 7 Fost. (N. Hamp.) R. 183; Mason v. Kennebec and Portland Railroad Co. 1 Red. (Me.) R. 215; Haswell v. Vermont Central Railroad Co. 23 Vt. R. 228; Field v. Vermont and Massachusetts Railroad Co. 4 Cush. (Mass.) R. 150; Meacham v. Fitchburg Railroad Co. 4 Cush. (Mass.) R. 291, and Ib. 440 and 467; Polly v. Saratoga and Washington Railroad Co. 9 Barb. (N. Y.) Sup. Ct. R. 449; Hamilton v. Annapolis, &c. Railroad Co. 1 Md. Ch. R. 107; Metherell, ex parte, Eng. Law and Eq. R. 139; Salisbury v. Great Northern Railway Co. 10 Eng. Law and Eq. R. 8; Powvey v. Calais Railroad Co. 17 Shep. (Me.) R. 498; Vermont Central Railroad Co. v. Baxter, 22 Vt. R. 365; Willard v. Newbury, 27 Vt. R. 458; Hart v. Western Railroad Corp. 13 Met. (Mass.) R. 99. And see the "General Railroad Laws of the State of New York, with Notes and References," by William S. Bishop, Rochester, N. Y. 1853.

1 Rex v. Severn and Wye Railway Co. 613.

[merged small][merged small][ocr errors]

1

confer power to lay out the road on and along an existing highway; yet it is competent to the legislature to grant such authority even by implication; and such implication may result either from the language of the act, or from its being shown, by an application of the act to the subject-matter, that the railroad cannot, by reasonable intendment, be laid in any other line." Take, for example, the familiar case of the Notch in the White Mountains, a very narrow gorge, which affords the only practicable passage, for many miles, through that mountain range. A turnpike road through it has already been granted. Suppose the gorge not wide enough to accommodate another road, but the legislature of New Hampshire, in order to accommodate a great line of public travel, should grant power to lay a railroad on that line; they would, by necessary implication, grant a power to take some portion of the road-bed of the turnpike.2 The case referred to was a bill in equity, brought to enjoin a railroad company from maintaining a railroad, and running cars thereon, upon and over a public highway in Springfield, Massachusetts, on the ground, that such maintenance of the railroad was unauthorized, and constituted a nuisance.

§ 21. In the absence of any action of the legislature, a railroad company is under no obligation to inclose their road against the entrance upon it of cattle from the adjacent grounds, so that the company is not answerable, without gross negligence, in running an engine upon, and killing cattle, which escape from the owner's inclosure and stray upon the track. But in the charters to some companies of this kind, it is made

1 Springfield v. Connecticut Railroad Co. 4 Cush. (Mass.) R. 63.

2 Ibid. Per Shaw, C. J. As to the right of appropriating a corporate franchise, for the public benefit, see post, Chap. II.

3 The cattle are to be regarded as trespassers, and the law charges their owners with negligence. Munger v. Tonawanda Railroad Co. 5 Denio, (N. Y.) R. 255; and 4 Comst. (N. Y.) R. 349; Waldron v. Rensellaer Railroad Co. 8 Barb. (N. Y.) Sup. Ct. R. 390; Clark v. Syracuse and Utica Railroad Co. 11 Barb. (N. Y.) Sup. Ct. R. 112.

[ocr errors]

obligatory to fence in the line of their road against the inroad of cattle, and then, if the railroad company do not observe the directions of the act, the company is chargeable in such case, and responsible for injury. The general railroad act of the State of New York, contains the following: "Every corporation formed under this act, shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings, or gates, or bars therein, and farm-crossings of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle-guards at all road-crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines, to cattle, horses, or other animals thereon; and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or wilfully done; and if any person shall ride, lead or drive any horse or other animal upon such road, and within such fences and guards, other than at farm-crossings, without the consent of the corporation, he shall for every such offence forfeit a sum not exceeding ten dollars, and shall also pay all damages which shall be sustained thereby to the party aggrieved. It shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except where the same shall be laid along public roads or streets." Since the above enactment, it has been decided in Suydam v. Moore, that if a railroad company neglects to erect fences on the sides of the railroad, and construct and maintain cattle-guards at road-crossings, as required by the above statute, and a cow comes upon the track, and is run

1

1 Suydam v. Moore, 8 Barb. (N. Y.) Sup. Ct. R. 358,

« ՆախորդըՇարունակել »