24 N.H. 179 (N.H. 1851), Dearborn v. Boston, Concord & Montreal Railroad

Citation:24 N.H. 179
Opinion Judge:EASTMAN, J.[a1]
Party Name:DEARBORN v. THE BOSTON, CONCORD AND MONTREAL RAILROAD.
Attorney:Quincy, for the defendants. Perley, with whom was W. C. Thompson, for the appellant.
Court:Superior Court of New Hampshire
 
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Page 179

24 N.H. 179 (N.H. 1851)

DEARBORN

v.

THE BOSTON, CONCORD AND MONTREAL RAILROAD.

Superior Court of Judicature of New Hampshire.

December Term, 1851

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The damages sustained by the owners of lands over which a railroad may pass, whether assessed by the commissioners or by the jury on appeal, are to be all such as may fairly result to the land owner by the building of the road in a suitable and proper manner, not only on account of the land actually taken, but on account of the injuries to his other lands and property, and the inconveniences to which he is subjected.

A jury must assess the damages as of the time when the commissioners passed upon the subject; but if, after appeal, the road be made before trial, the jury may view the premises for the purpose of forming their opinion as to the proper assessment to be made for damages sustained. And as the corporation is liable in this proceeding for such damages only as may arise from making the road in a suitable and proper manner, the jury may judge whether the road is suitably made, and what damages are proper for the corporation to pay for a road suitably made in that place.

Where a part of the appellant's land was liable to be washed and to cave off where there was a bank, and the sand drifted from the road to the injury of his adjoining land, and the court instructed the jury that if these effects resulted unavoidably from the building of the railroad in a suitable and proper manner, then damage was to be allowed, but if caused by building the road improperly it was not to be allowed --Held, that the evidence was admissible and the instructions correct.

Section 12, chapter 188, of the Revised Statutes, provides that members of public corporations shall be competent witnesses in cases affecting the interests of such corporations; and the act of December 25th, 1844, sec. 3, provides that all railroad corporations which shall be unable to purchase the lands for their roads of the owners on the respective routes, at rates to be agreed upon, shall be public corporations. Held, that railroad corporations were not such public corporations, within the meaning of the Revised Statutes, that the stockholders could be witnesses for the corporations.

The preliminary question, whether a witness is interested or not, is usually decided by the court. But the court may, in their discretion, submit the question to the jury.

APPEAL from the award made by the railroad commissioners and the road commissioners of this county, for the damages sustained by the appellant by reason of the laying out of the railroad across his land.

The plaintiff introduced evidence tending to show that in consequence of the building of the railroad, a part of his land was liable to be washed, and to cave off where there was a bank; and that the sand drifted from the railroad and injured his adjoining land. This evidence was objected to, but admitted, and the court instructed the jury that if these effects resulted unvoidably from the building of the railroad in a suitable and proper manner, the damage was to be allowed, but if they were caused by building the road improperly, it was not to be allowed. To these instructions the defendants excepted. The jury had a view of the premises.

A witness was introduced by the appellees, who testified, on examination by the appellant, that he was not a stockholder of the railroad corporation; that he had ceased to be so since the sitting of the court; that he had sold his stock to the president of the corporation for the price of one hundred dollars a share, and had taken the buyer's obligation to deliver to him four shares of stock in said railroad at par, or one hundred dollars in money, at the choice of the obligor; that his object in selling was to be a witness in this case; that he supposed the present market value of the stock to be fifty-five or fifty-six dollars a share, and he expected to be paid in stock, if he called before the stock rose to par.

At the instance of the appellant, the court decided to submit the evidence tending to shew the witness interested, to the jury, and the evidence was received, subject to their decision. To this course of deciding the interest of the witness the defendants excepted.

The jury returned a verdict for the plaintiff, which the defendants moved to set aside, by reason of said rulings and the exceptions thereto.

The case of Mary F. Rogers against the railroad, and of William Gould against the same, embrace substantially the same facts as stated in the above case. They were tried at the same time, and all argued as one case, and the decision made in this case applies to the three.

Quincy, for the defendants. The court ruled, in substance, that if from the construction of the railroad in a proper manner the several kinds of damages complained of necessarily occurred, the petitioner was entitled to recover for them in this proceeding, but the court also added, what must have been understood by the jury as part of the rule as to damages, that if the damages were caused by building the road improperly, they were the subject of another action.

This charge and ruling the defendants contend was erroneous, because it did not clearly recognize and enforce the distinction between what were the necessary damages and what were merely the possible damages occasioned by the acts of the defendants.

As this case is an appeal from the award of damages made by the commissioners, the question of damages should, of course, be determined by the same rule which should have governed that board. If the appellant succeeds in obtaining an increased assessment of damages, he will be entitled to costs.

The commissioners could take into consideration only the necessary consequences of...

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