Bailey v. Sweeney

CourtSupreme Court of New Hampshire
Citation9 A. 543,64 N.H. 296
PartiesBAILEY v. SWEENEY and another.
Decision Date11 March 1887

Reserved case from Sullivan county.

Trespass, for three tons of hay, with a count in trover for the same. Facts found by the court.

The railroad crosses the plaintiff's farm, and he owns the land on both sides of it for about 100 rods. The grass and hay in controversy was cut by servants of the railroad within the limits of the road, and was carried away by the defendant, a section-man in the employ of the corporation. The plaintiff requested to be allowed to remove the hay after it was cut. He was ready to receive it and take it away, and it could have been delivered without inconvenience. But permission was refused. The corporation had given the hay to the defendant. The rights and title of the corporation in the land where the hay was cut were acquired by condemning and taking it for railroad purposes by legal proceedings. Due precautions for the prevention of fires required that the grass growing by the side of the track should be removed, or burnt upon the ground. Verdict for the plaintiff for $15, which the defendant moves to set aside.

Ira Colby, for plaintiff.

J. H. Albin, for defendant.

ALLEN, J. The Sullivan county railroad, whose servant the defendant is, and by whose direction and gift the grass was taken and used, assumes the defense of the case. The grass grew within the limits of the railroad upon land that had been a part of the plaintiff's farm and taken for railroad purposes. The fee in the land taken for a railroad remains with the owner from whom the land was taken. The railroad has the possession and control of the land to use for constructing, maintaining, and operating a railroad. Blake v. Rich, 34 N. H. 282. If there was a reasonable necessity for the defendant in interest to remove the grass for the safety of passing trains, or as a precaution against the spread of fire for the damages from which the railroad is liable, it was not necessary to sell or give away the grass, nor did its possession of the land for railroad purposes entitle it to appropriate the hay. Chapin v. Sullivan R. R., 39 N. H. 564, 570; Aldrich v. Drury, 8 R. I. 554; Taylor v. New York & L. B. R. Co., 38 N. J. Law, 28; Pierce, R. R. 160. If the safe operation of the railroad, and the protection of its business, made it necessary to exclude the plaintiff from the land occupied by the road, there is nothing to show that the defendant could not have...

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7 cases
  • Sanborn v. Duyne
    • United States
    • Supreme Court of Minnesota (US)
    • July 10, 1903
    ......& S. (4th Ed.) § 9, p. 10, and page. 252; Elliott, Roads & S. (2d Ed.) § 230; Dovaston v. Payne, 2 Smith, Lead. Cas. 160; Bailey v. Sweeney, 64 N.H. 296; Jordan v. Woodward, 40. Me. 317; Peck v. Smith, 1 Conn. 103; Gardiner v. Tisdale, 2 Wis. 115; Weisbrod v. Chicago, ......
  • Sanborn v. Van Duyne
    • United States
    • Supreme Court of Minnesota (US)
    • July 10, 1903
    ...possession of the soil of the highway subject only to the easement of the public." See also Peck v. Smith, 1 Conn. 103; Bailey v. Sweeney, 64 N. H. 296, 9 Atl. 543; Jordan v. Woodward, 40 Me. The authorities very generally hold that the owner of the fee to real property, which is subject to......
  • Lyford v. City of Laconia
    • United States
    • Supreme Court of New Hampshire
    • April 6, 1909
    ...for any purpose not inconsistent with the public right. Bigelow v. Whitcomb, 72 N. H. 473, 57 Atl. 680, 65 L. R. A. 676; Bailey v. Sweeney, 64 N. H. 296, 9 Atl. 543; Winchester v. Capron, 63 N. H. 605, 4 Atl. 795, 56 Am. Rep. 554; Blake v. Rich, 34 N. H. 282; Baker v. Shephard, 24 N. H. 208......
  • Bigelow v. Whitcomb
    • United States
    • Supreme Court of New Hampshire
    • March 1, 1904
    ...282; Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Winchester v. Capron, 63 N. H. 605, 4 Atl. 795, 56 Am. Rep. 554; Bailey v. Sweeney, 64 N. H. 296, 9 Atl. 543; Perley v. Chandler, 6 Mass. 454, 456, 4 Am. Dec. 159; Jackson v. Hathaway, 15 Johns. 447, 453, 8 Am. Dec. 263. "The owner of ......
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