Bailey v. Sweeney

• Decision Date: 11 March 1887
• Citation: 9 A. 543,64 N.H. 296
• Parties: BAILEY v. SWEENEY and another.
• Court: New Hampshire Supreme Court

9 A. 543

64 N.H. 296

BAILEY

v. SWEENEY and another.¹

Supreme Court of New Hampshire.

March 11, 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...