Adden v. White Mts. N.H. Railroad

• Decision Date: 12 March 1875
• Citation: 55 N.H. 413
• Parties: Adden v. White Mts. N.H. Railroad.
• Court: New Hampshire Supreme Court

55 N.H. 413

Adden v. White Mts. N.H. Railroad.

Supreme Court of New Hampshire

March 12, 1875

In awarding damages to the owner of land taken for a railroad the exposure of his remaining land and buildings to fire from the company's engines is a proper element to be considered in making the estimate.

The statute, which imposes upon railroad corporations an absolute liability for all damage caused by fires from their locomotives, does not necessarily preclude a recovery of anything for this cause; but the question is, How much will the property be diminished in value by reason of such exposure, considering at the same time the indemnity provided by the statute?

Benefits from the construction of a railroad, which the land-owner enjoys in common with the public generally, cannot be set off in reduction of his damages

APPEAL from an award by the railroad commissioners and the selectmen of Northumberland of four hundred dollars for land damages.

The railroad was constructed over and across the appellant's land and in the vicinity of the track, and upon both sides of it was a growth of pine trees. The defendants contended that by the construction and operation of the railroad the appellant derived advantages for getting his lumber to market, which advantages should be taken into consideration in diminution of the damages sustained by the appellant. The court instructed the jury that they must not set off against the land-owner's individual damages any incidental and general advantages enjoyed by him in common with the public generally; but if, by reason of the construction of the railroad over his land, the land-owner derived special and peculiar advantages, these may be set off at what they are worth against his loss and disadvantages; that if, by reason of laying the road through his land, the land-owner is afforded peculiar facilities and advantages in respect to his growing pine trees, this advantage to him may be considered in estimating his damages. The track of the

railroad was located at a distance of about one hundred feet from the end of the appellant's house. In the closing argument of the plaintiff's counsel to the jury, he claimed that they ought to take into consideration the enhanced expense required to insure the house against fire by reason of its proximity to the railroad, and requested the court to charge the jury to that effect; but no testimony had been introduced on either side concerning the matter of insurance, nor did it appear whether or not the appellant's house was ever insured, nor whether or not the rates of insurance would be increased by reason of the construction of the railroad. The court refused this request, and charged the jury that since by the provisions of the Gen. Stats., ch. 148, sec. 8, the proprietors of a railroad are made "liable for all damages which shall accure to any person or property by fire or steam from any locomotive or other engine on such road," no damages in respect to this matter could be allowed. To these rulings and instructions the appellant excepted. The jury awarded as damages four hundred and fifty dollars.

Case reserved.

Fletcher & Heywood, for the plaintiff. Ray & Drew (with whom was Bingham), for the defendants

SMITH J

The rule in regard to the assessment of damages for land taken for a public highway is well settled in this state. Nothing is to be deducted on account of benefits and advantages not peculiar to the owner of the land so taken, but which are general, and shared in by other land-owners in the vicinity. He is entitled to compensation, not only for the land actually taken, but for the damage to the whole tract through which the road passes,---which includes the diminished value of what is left. If the result of the construction of the highway is inevitably to raise the value of all the lands in the neighborhood, he is as much entitled to his share of the general advantages, without compensation, as others whose lands are not taken. To require him to offset such advantage against his damages for the taking of his land, would require him to bear a portion of the expense of the highway which should be borne by the public, and would be manifestly unequal. This rule is correct on principle, and is abundantly supported by authorities. Carpenter v. Landaff, 42 N.H. 218; Petition of Mt. Washington Road Co., 35 N.H. 134. The same rule is also adopted in Massachusetts. Meacham v. Fitchburg Railroad Co., 4 Cush. 291; Upton v. South Reading Branch R. R., 8 Cush. 600; Whitman v. Boston & Maine R. R., 3 Allen 133; S. C., 7 ib. 313;---also in other states. Redf. on Railw., 2d ed., *133, sec. ix, 71, and authorities there cited.

This rule is equally applicable to a railway corporation as to a public highway. Railroad corporations are declared by statute to be public highways. Gen. Stats., ch. 146, secs. 1--3. A turnpike road is a pub-

lic highway, differing from free roads only in the manner of use. All citizens may use a turnpike by paying the established toll. Backus v. Lebanon, 11 N.H. 24, cited by PERLEY, C. J., in Pet. of Mt. Washington Road Co., 35 N.H. 140, where it was held that "the power to take private property for public use may be exercised by the government through the means of a private corporation. The fact that the members have a pecuniary interest, such as will give it in law the character of a private corporation, will not prevent the state from using it to accomplish a public object."

In awarding full indemnity to the owner for land taken from him for public uses by authority of law, several elements are to be taken into the account. The diminished value of what is left is one very important fact. This diminished value may arise from several causes, such as the inconvenient separation of the track, rendering the buildings less commodious, interrupting the supplies of water for cattle or irrigation or household purposes, and the like---Carpenter v. Landaff, ubi supra; to which may be added the nearness of the track to the owner's buildings, the inconveniences caused thereby, and "the imminent and appreciable danger from fire," and the like. Proprietors of Locks, & c., v. Nashua & Lowell R. R., 10 Cush. 385; Redf. on Railw., 2d ed., *155, note 10, and authorities cited.

The law does not afford indemnity for all losses occasioned by the laying out and use of a railroad, especially for such damages as are remote and consequential. They are damages not caused by the taking of the land for the road, but by the change which the public improvement introduces into the course of business. It affords no protection against new competitions, nor against changes introduced by time and the progress of the age---Pet. of Mt. Washington Road Co., 35 N.H. 146, and Proprietors of Locks, & c., v. Railroad, 10 Cush. 389; nor does it afford relief against such inconveniences as "the whole community suffer alike, in a greater or less degree, and which are to be borne by the public in consideration of the greater public good to be acquired." Ib., 391. But whatever tends directly and substantially to diminish the value of the tract of land left to the owner, who has been compelled to part with the possession of a portion thereof for the public good, should be weighed and considered in awarding him his damages. That imminent and appreciable danger from fire does so diminish the value of his property, there can be no question.

The defendants' road is located one hundred feet from the plaintiff's dwelling-house. It is unquestionably material for the jury to consider whether his damages are not greater with the tract one hundred feet distant, than they would be at a distance of one hundred rods. The location of the tract, and all such matters as grow out of and are caused by the location, are proper matters for the jury to consider.

It is claimed here by the defendants that the plaintiff is insured by the statute, which in case of loss makes the defendants liable to the plaintiff---Gen. Stats., ch. 148, sec. 8---and therefore that the element of the enhanced cost of insurance should not be considered in award-

ing his damages. But I think this does not follow. His buildings may never burn. If they do not, of course the railroad cannot be called on to pay. But is the plaintiff to go without insurance because the railroad is made liable? It is the part of prudence for one to keep well insured. Is the owner compelled to rely on the railroad? Suppose the road happens to be insolvent, as many railroads are: where would be his security? Suppose, in case of loss by fire of his buildings the railroad contest their liability on the ground that the fire did not originate from their locomotives:...