Rogers v. Kennebec & Portland Rail Road , 35 Me. 319 ( 1853 )

Shf.pley, C. J.

—By their charter and by the general Act respecting rail roads, the defendants were authorized to take and hold land and other real estate and materials, that might be necessary for the construction and operation of their road, subject to certain restrictions ; and they were required to pay for the same. No provision was made by statute for compensation for an injury occasioned by a construction of the road to any person, from whom no land, estate or materials were taken. In this respect the provisions of our statutes differ from those of Massachusetts, as explained in the case of Dodge v. County Commissioners, 3 Metc. 380. No land, estate or materials owned by the plaintiff was taken ; and he cannot be entitled to the remedy provided by the statute in such cases.

For any lawful act done by the defendants, in the construction of their road, the plaintiff will not be entitled to recover damages, although he may have been indirectly injured. Spring v. Russell, 7 Greenl. 273; Callender v. Marsh, 1 Pick. 418, Radcliff’s Ex’rs v. the Mayor, &c. of Brooklyn, 4 Comst. 200.

The Legislature might authorize the defendants to construct a causeway or bridge across navigable or tide waters, although the navigation might thereby be impaired or injured. Parker v. The Cutler Mill-dam Co. 20 Maine, 353; Brown v. Chadhourne, 31 Maine, 9.

The defendants will not, therefore, be liable for any damages suffered by the plaintiff, unless they have exceeded the authority conferred upon them and conducted unlawfully.

It is insisted, that across tide or navigable waters, they were authorized to erect bridges only, and not causeways.

The additional Act of July 16, 1846, provides, that the “ company shall have the same power to construct bridges and causeways across tide waters,” “ and with the same conditions and restrictions as are granted” to the Bath and Portland R. R. Co. by the fifteenth section of the Act incorpor-. ating said company. The meaning of this must be, that the defendants should have the same power to construct bridges and causeways as said Bath and Portland R. R. Co, had by their Act of incorporation to erect bridges. They might lawfully construct a causeway, and the bank raised for a passageway over the stream may, perhaps, be properly denominated a causeway.

By the provisions of the fifteenth section of their Act of incorporation, the Bath and Portland R. R. Co. were not authorized to construct bridges so as to prevent “ the navigating said waters.” If, therefore, the defendants have so constructed a causeway over a navigable stream as to do this, they may be liable for damages in an action on the case. They might also, according to the language used in the same section, be ;i liable for all damages sustained by individuals in consequence of unreasonable detention.”

If they have not prevented the navigation of the stream, but have so constructed their causeway or embankment as to occasion unnecessary and unreasonable detention, they may be liable for the damages thereby occasioned.

There is testimony, from which a jury might perhaps find, that the navigation of the stream had been prevented ; and that certain logs of the plaintiff had been unreasonably detained while floating down the stream.

Exceptions sustained ; nonsuit taken off, and case to stand for trial.

Wells, Howard, Rice and Hathaway, J. J. concurred.