Thomson v. Sebasticook & Moosehead R. R. , 81 Me. 40 ( 1888 )

Peters, C. J.

If the rulings and instructions are correctly interpreted by the plaintiff’s counsel, they were wrong. The question of the case is not very clearly presented. But with the burden on the plaintiff to show that he has been aggrieved we are inclined to believe that his position is not sustained. The matters in controversy were more fully explained by the judge in the reported charge than the exceptions present to us.

An issue of fact in the case was, whether the land taken by the defendant road was naturally wet land or not, the evidence showing that water stood upon it for quite a period during the year. The defendants contended that the wet condition of the land was its natural condition, or that, what would be of the same effect, as between the parties to this litigation, was caused by certain legitimate obstructions, of a permanent character, put on the plaintiff’s land by another railroad, the Maine Central Railroad, which prevent the free flowing of the surface water from her land. To counteract this position, the plaintiff contended that the obstruction to a free passage of the water from her land was caused not by the Maine Central Railroad bed, but by a person filling up a brook with rocks, while clearing a parcel of land, at a point below that railroad, so that the brook would at times flow the water back through a culvert under the railroad upon her land.

An objection was made to the evidence showing this contention,, and the objection was sustained. It should not have been. The rocks in the brook were not a permanent obstruction, and the owner above could have gone below and rightfully removed them from this natural water-passage, in order to prevent the incubus of water upon her land. But this error in the ruling was after-wards obviated by the witness going on at a later point in his examination and explaining the matter fully without encountering objection.

The judge in his charge properly made a distinction between permanent and temporary obstructions, taking the position, substantially, that any permanent injury to the land caused by the rightful use of it by the Maine Central road, should be considered as an impairmept o£ its value, which would lessen the damages otherwise to be paid by the defendants. Some of the confusion in the case was evidently owing to the counsel for the defendant objecting to the admission of evidence touching permanent obstructions, when he would have much better allowed its introduction as the very argument that the value of the land taken must thereby be less.

Though it may be doubtful whether the jury fully understood the points at issue between counsel in the ease, there is a failure to show that the presiding judge committed any error, or that the exceptions should be sustained.

Exceptions overruled.

Walton, Daneorth, Virgin, Emery and Haskell, JJ., concurred.