Chapin v. Sullivan Railroad , 39 N.H. 564 ( 1859 )

Fowler, J.

By the fifth section of chapter 593 of the laws of 1850, (Comp. Laws 350,) it is made the duty of every railroad corporation in this State to make and maintain all necessary cattle-guards, cattle-passes and farm-crossings, for the convenience and safety of the land-owners along the line of their road.

The report of the commissioner finds distinctly that the injury to the plaintiff’s sheep was caused by the want of cattle-guards at the farm crossing prepared by the defendants for the use of the plaintiff with the plaintiff’s assent to its location, and not through any fault of the plaintiff. The defendants were bound to construct and maintain, at the crossing thus prepared by them, the guards necessary to prevent the plaintiff’s sheep, when driven over it, from passing on to their track. In consequence of their neglect to do so, the plaintiff was damnified to the amount of twenty-five dollars by the destruction of his sheep, and for this damage he is clearly entitled to recover. White v. Concord Railroad, 80 N. H. 188; Chapin v. Sullivan Railroad, (ante, page 53).

Our conclusion upon this point in no way conflicts with the decision in Horne v. Atlantic and St. Lawrence Railroad, 36 N. H. 444, cited by the defendants. It was there held that a land-owner had no right of action against a railroad for damages resulting from the want of farm-crossings and cattle-passes, unless the railroad had agreed to pi*ovide them, or the land-owner had applied to justices under the statute to have them located- and constructed. In the case before us it is fairly to be inferred that the parties had agreed upon the number and place of the crossings, and the railroad company had undertaken to construct them,'but had constructed the one near which the injury to the plaintiff’s sheep happened, so improperly that the injury occurred in consequence of the deficiency. The defendants, then, had performed an admitted and recognized duty they owed the plaintiff, so imperfectly and negligently, that in consequence of their misconduct the plaintiff suffered the injury of which he complains. Nothing seems plainer than that for ab injury thus resulting directly and immediately from the palpable fault of the defendants, the plaintiff ought to recover full compensation.

The plaintiff’s ox was wrongfully running at large in the highway. Against an animal thus wrongfully upon the highway, the defendants were bound to maintain neither fences or cattle-guards. When it escaped from the highway upon the defendants’ track, it was wrongfully there, and having been killed by the defendants’ engine, without negligence on the part of themselves, their agents and servants, the defendants are not responsible for the loss. Woolson v. Northern Railroad, 19 N. H. 267; Chapin v. Sullivan Railroad, (ante, page 53.)

The defendants entered upon the plaintiff’s land under an arrangement whereby they had a right to construct and use the track for their branch road thereon, and hold the same as long as it should be used for railroad purposes. This arrangement, as stated by the commissioner, we think amounted only to a permissive license, and gave the defendants no right to the soil or the stone contained therein for any other purpose than the construction and use of their track. They might, undoubtedly, have used the stone excavated on the plaintiff’s land in grading this branch track, for the construction of the necessary culverts and bridges therein; but the material for those purposes having been procured elsewhere, a mere license to construct and use the track and hold the land, could give the defendants no, right to appropriate this stone to a similar use elsejvhere. Upon the report of the commissioner, it must be held that the stone excavated from the plaintiff’s land, in grading the branch track, so far as not actually used in the construction of that track, belonged to the plaintiff, and could not be removed by the defendants without his permission.

The natural and respective rights and duties of railroad corporations and land-owners, in respect to land appropriated by authority of law to railroad purposes, were discussed and considered in Blake v. Rich, 34 N. H. 282, where, upon a full examination of the statute and authorities, it was held that the exclusive right of property in the land, in the trees and herbage upon its surface, and the minerals beneath it, remains unchanged, notwithstanding the location of a railroad thereon, subject always to the right of the corporation to construct and operate a railroad over and through it, as authorized by law. There is perhaps nothing in the report of the commissioner demanding any expression of our opinion as to what might or might not have been the rights and liabilities of the parties in the present case, in respect to stone, earth and gravel excavated in grading the branch track across the plaintiff’s land, had that track been a portion of the road, as originally laid out, and had the land for the construction of the entire line been taken and appropriated to railroad purposes by the appraisal of the railroad commissioners and the selectmen of the town, under the provisions of the statute. It may not, however, be improper to state our decided impression, that, in such case, the railroad might and would have been entitled to employ the whole or any portion of the earth, stone and gravel, excavated on one portion of the line, in the proper construction of any other portion thereof.

As, upon the findings of the commissionei’, the plaintiff remained the owner of the land, and whatever stone and other materials excavated therefrom were not used and appropriated by the defendants in pursuance of their license, he is entitled to recover the value of all the stone taken by the 'defendants and removed to their original track, whether the same had been deposited at the time of excavation within or without the limits of the branch road as located.

The plaintiff is then entitled to judgment upon the commissioner’s report for the sum of ninety-eight dollars, being the amount of damage to his sheep, and the value of the stone removed, as fixed by the commissioner, with interest from the date of the writ.

Judgment for the plaintiff.