10 R.I. 14 (R.I. 1871), Spencer v. Hartford, Providence, and Fishkill Railroad Co.

Citation:10 R.I. 14
Opinion Judge:POTTER, J.
Party Name:WILLIAM B. SPENCER v. HARTFORD, PROVIDENCE, AND FISHKILL RAILROAD COMPANY.
Attorney:James Tillinghast, for the plaintiff. Currey, for the defendants.
Court:Supreme Court of Rhode Island
 
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Page 14

10 R.I. 14 (R.I. 1871)

WILLIAM B. SPENCER

v.

HARTFORD, PROVIDENCE, AND FISHKILL RAILROAD COMPANY.

Supreme Court of Rhode Island.

March Term, 1871

A railroad corporation held liable in damages for building a bridge across a river with a pier turned obliquely to the course of the river, in such a manner as to turn the water of the stream, in time of freshets, upon the plaintiff's grass land, thereby throwing sand and earth upon it, and gullying and washing away the same, it appearing that the bridge could, at an additional expense, have been erected with safety to the railroad, in such a manner as not to injure said land. Held, further, that the plaintiff was not estopped from maintaining his action for the damage so caused to his land, by reason of having previously, by deed, conveyed to the said railroad corporation a portion thereof, for the purposes of a railroad, and, in consideration of the purchase money, released all claims for damages which might be awarded by commissioners, inasmuch as the commissioners could have appraised and awarded only such damages as would have resulted from the construction and use of the road in a legal and proper manner.

ACTION OF THE CASE, alleging negligence and carelessness on the part of the defendants, in the construction of a railroad bridge over the Pawtuxet River, near Natick, R.I. The case was heard by the court upon the facts as reported by the auditor to whom it had been referred. The essential parts of his report are stated in the opinion of the court.

A railroad is liable for damages caused by its building a bridge with a pier turned obliquely to the course of the river, so as to turn the water, in time of freshet, upon plaintiff's grass, thereby throwing sand upon it, and gullying and washing it away, if the bridge could, at an additional expense, have been erected so as not to injure the land.

James Tillinghast, for the plaintiff.

I. The injury here complained of could not have been included in damages assessed under the defendants' charter. And by no possible construction can they be held to have been released by the plaintiff's deed; particularly as that is expressly confined to damages " within the lines " of the road, and the auditor's report finds that it was understood by the plaintiff that these damages were not to be released, and he therefore settled with the defendants for a less sum than he otherwise would. The defendants, therefore, cannot set up their charter in bar, and the plaintiff's right of action remains as at common law.

See defendants' charter, §§ 1 and 7; Schedule Gen. Assembly, June, 1846, pp. 36-40; Hooker v. New Haven & Northampton Co. 14 Conn. 146; Whitcomb v. Vermont Central R. R. Co. 25 Vt. 49; Sabin v. Vermont Central R. R. Co. 25 Ib. 363; Troy v. Cheshire R. R. Co. 3 Foster (23 N.H.), 183; Lancashire & Yorkshire R'y....

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