Knorr v. Germantown, Rail Road , 5 Whart. 256 ( 1840 )

The opinion of the Court was delivered by

Rogers, J.

This is a question of remedy, and not of right. The act incorporating the company makes it their duty, when required, to make, or cause to be made, a good causeway, whenever it may be necessary, to enable the occupant to cross over or under the embankment; and to keep the same in good repair. This is a burthen which is properly cast upon them, when the ground Ü3 in the actual occupation of the company; but the propriety of throwing these specific duties upon them is not so obvious, when, for good reasons, the legislature have thought it no longer desirable that the work should be prosecuted to completion, in a particular course or direction. The same authority which imposed the duty, have the undoubted right to release them from it, giving to the party injured by the change an adequate compensation for any injury which may be sustained. In a supplement to the original act, the legislature has relieved the company from making part of the road, altogether; the route having been changed. From this it will follow, that the intention is plain, to exempt them from a duty which is incidental only. It would be an unreasonable construction of the act, to compel the company not only to make the road, but to keep it forever in repair, which is the consequence of the doctrine for which the plaintiff contends. There cannot be a right of action, unless for the violation of a legal obligation, and when an attempt to perform that which is required, would render the person liable to an action of trespass. But it may be asked, are the owners to be without remedy 1 This, which might have otherwise been the consequence of the enactment in the supplement, has been effectually prevented. The act provides, in the first place, for an amicable settlement, and in case the parties cannot agree, it has empowered the Court to settle all differences between them, upon the most fair and equitable principles, by the appointment of men with authority to settle the controversy, and to give to the owners all the damages which may accrue to them in consequence of the diversion of the main route of the rail-road. It is by no means a strained construction of this clause to hold, that the omission or refusal to make a passage for the convenience of the owner, when required, is an injury or damage consequent to the change of route, and, as such, comes within the spirit of this enactment. We cannot intend that the legislature would do any thing so unjust, as to leave the injured party without remedy; and the redress which they afforded here is plainly pointed out in the act; and they certainly could not have intended that he should be compelled to seek redress at common law. In connection with the claim for compensation, the arbitrators are required to take into consideration the amount of damages already paid, and the advantages to be derived by the reversion of the fee simple of the land to the former owner. If this course had been pursued, equal and exact justice could have been done to both parties ; and this action would seem like an attempt to elude those equitable provisions in favour of the company. If this suit can be supported, the company may be precluded from showing, as may be the case, that the benefit which the plaintiff has obtained by the* change of route, is more than an equivalent for the damage sustained by the omission or refusal to make the road or causeway, as required by the original act.

Judgment affirmed.