Whittieer v. Portland & Kennebec Railroad , 38 Me. 26 ( 1854 )

Shepley, C. J.

— It does not appear, that any of the plaintiff’s land was taken for the construction of the railroad.

It is said, that his land extended to the centre of Winthrop street. If so, he might have had his damages, if any were suffered, assessed in the manner provided, when lands are taken. But he cannot maintain an action at law for such an injury.

If any person entertains the opinion, that he may not be exposed to injuries by legislative enactment without being enabled in all cases to obtain compensation, that opinion is an erroneous one. The constitution will not protect him against all injurious legislative enactments. Cushman v. Smith, 34 Maine, 247.

No provision has been made in this State for compensation for injuries occasioned by the lawful construction of railroads to any person, from whom ño lands or materials have been taken.

For any lawful acts of the corporation in the construction of the railroad, although indirectly injurious to the plaintiff, he cannot recover damages. Rogers v. Kennebec & Portland Railroad Corporation, 35 Maine, 319.

It is stated in the bill of exceptions to have been “ conceded by the plaintiff, that the defendants merely complied with the orders of said County Commissioners in what they did to Winthrop street in the fall of 1850.”

The statute c. 81, § 13, provides, that a railroad corporation, before commencing to raise or lower a way, may.request the direction of the County Commissioners as to the mode of raising or lowering the same, and it shall be their duty to direct the mode of performing said work, “and their decision shall be final.” This makes it legal and conclusive upon all parties. No one can allege it to have been unlawfully done, when the railroad crossing has been made in conformity to their directions.

But it is said, the County Commissioners had acquired no jurisdiction, because the petition requested them “to examine the subject and prescribe the best manner, in which said Winthrop street may be crossed by said railroad.”

The County Commissioners had by statute jurisdiction of the subject, and the petition presented it in terms sufficiently extensive to enable them to decide “as to the mode of raising or lowering” the street.

If the corporation is not liable in damages for such a construction of its road, it cannot be liable for those subsequently occasioned by the acts of the officers, of the city of Hallowell.

The instructions given were erroneous, and those requested should have been given. Verdict set aside and New trial granted.

Tennev, Appleton and Cutting, J. J., concurred.