Cassidy v. Old Colony Railroad , 141 Mass. 174 ( 1886 )

Holmes, J.

The taking of land for a railroad “ is an appropriation of the land to all the uses of the land for the road, necessary and incidental.....Practically the damages are commonly equal to the value of the land.....The right and power of the company to use the land within their limits may not only be exercised originally, when their road is first laid out, but continues to exist afterwards; and if, after they have commenced operations, it is found necessary, in the judgment of the company, to make further uses of the land assigned to them, for purposes incident to the safe and beneficial occupation of the road, by raising or lowering grades, cutting down hills, and removing trees, they have a right to do so to the .same extent as when the railroad was originally laid out and constructed.” Brainard v. Clapp, 10 Cush. 6, 8, 10. Callender v. Marsh, 1 Pick. 418, 432. Thus the law stood at the time of the location of this railroad, in 1845, and thus it still stands, unless special provision for further compensation is made by statute. Boston v. Richardson, 13 Allen, 146, 159. Pierce v. Drew, 136 Mass. 75.

It follows that the respondent must be presumed to have paid, at the time of its original location, for the damage now sought to be recovered for, so far as such damage was proper to be considered; and even if the statutes now provided proceedings to recover damages against railroads in case of a subsequent change of grade, it would require a pretty strong argument to convince us that they were intended to give further damages in a case where full compensation had been paid originally. No such statute, however, has been called to our attention.

Again, the claim stated by the petitioner, on which the court ruled, was for cutting off all natural drainage of surface water from the adjacent lands, discharging surface water from the respondent’s road-bed upon the adjoining land of the petitioner, and shutting off the view, light, and air from the petitioner’s premises. None of these acts infringed any common-law rights of the petitioner. They would have been perfectly lawful on the part of any other adjoining owner. Gannon v. Hargadon, 10 Allen, 106. Franklin v. Fisk, 13 Allen, 211. Bates v. Smith, 100 Mass. 181. Rathke v. Gardner, 134 Mass. 14. Keats v. Hugo, 115 Mass. 204. And we are not aware that it has been decided in this Commonwealth that .they form a substantive ground of recovery under the railroad acts, although, if land were taken, as it was from the petitioner’s predecessors in title at the time of the original location, some portion of this bind of damage to the remaining land might be considered, according to Walker v. Old Colony Newport Railway, 103 Mass. 10. See Morrison v. Bucksport & Bangor Railroad, 67 Maine, 353; Fay v. Salem & Danvers Aqueduct, 111 Mass. 27, 28.

However this may be as against a railroad exercising such rights only as it acquires by its location and subject to the duties imposed by statute, in the present case the respondent owned the fee by conveyance from the petitioner’s predecessors in title, and had all the rights, as against the "petitioner, that any other owner of the fee would have had. The petitioner treats the deed as if it were a mere release of the damages then due for the original location. But it is a conveyance in ordinary form, and it liad the same effect that a like deed to any other person would have had.

It is suggested that the petitioner had acquired an easement of drainage through the sluiceway built under its road by the respondent. No such claim appears to have been made at the trial; but, if it had been made, it could not have been maintained, for no lapse of time gives a man a right to drain surface water in its natural state upon his neighbor’s land; and the mere fact that, after it reaches that land, it escapes by a ditch, makes no difference. If the petitioner had had a ditch upon his own land, the discharge from which would have been a wrong, and actionable, acquiescence in the discharge for twenty years would have given him a right. But that is not this case.

Exceptions overruled.