Parker v. Nashua , 59 N.H. 402 ( 1879 )

The defendants were liable for any damage to the plaintiffs' land arising from negligence in failing to suitably maintain and manage its streets. Gilman v. Laconia, 55 N.H. 130. And it made no difference that the obstructed culvert was within the limits of a railroad crossing and under the care of the railroad. State v. Dover, 46 N.H. 452; Sides v. Portsmouth, ante, p. 24.

The instructions to the jury excepted to by the defendants were, in effect, that the plaintiffs could recover damages occasioned by the choking up of the culvert, but not damages arising from the reconstruction of the sidewalk, and that the plaintiffs' assistance in making the sidewalk was not contributory negligence. The instructions were only a statement of the law, that the defendants were liable to a land-owner for damages to his premises by water thrown upon them through their negligence in managing an adjacent highway, and for no other cause in the case. There was no question of contributory negligence. It was the right of the plaintiffs to usefully and beneficially enjoy their land. For that purpose they could erect buildings, excavate a cellar or a well, and construct suitable walks; and though any of these might, to a greater or less extent, and for a longer or shorter time, prevent water wrongfully thrown upon the land from escaping, the plaintiffs could not, on that account, be deprived of their remedy. They could not, for the express purpose of retaining the water, nor by acts from which such a purpose could be inferred, erect a dam or other structure, and then be heard to complain. Nor could they be deprived of the beneficial enjoyment of their land through any anticipation of the defendants' negligence. The construction of a sidewalk for purposes of travel did not impose upon them any duty greater than would have been imposed by building a like structure on their land wholly outside the highway, nor was their right to recover lessened by it. For damages arising from their own acts, or from any other cause than that complained of, the plaintiffs in this action could not recover. For the injury, which was the natural consequence of the defendants' neglect of duty, they were entitled to compensation. The question of contributory negligence did not apply, and the instructions were sufficiently favorable to the defendants.

Judgment on the verdict.

FOSTER, J., did not sit; the others concurred.