Cassidy v. Old Colony R. Co.

• Decision Date: 25 February 1886
• Citation: 5 N.E. 142,141 Mass. 174
• Parties: CASSIDY v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 174

5 N.E. 142

CASSIDY

v.OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts.

Filed February 25, 1886.

This is a petition filed in the superior court for said county, October 8, 1883, for a jury to assess damages alleged to have been incurred by the petitioner in the use and occupation of his land and dwelling-house, by reason of the respondent's elevating its road-bed adjoining the petitioner's land. The petition was dismissed in the superior court, and the petitioner alleged exceptions.

N.C. & J.K. Berry, for petitioner.

J.H. Benton, Jr., for respondent.

HOLMES, J.

The taking of land for a railroad “is an appropriation of the land to all the uses of the land for the road necessary and incidental. *** Practically the damages are commonly equal to the value of that land.” “The rights and power of the company to use the land within their limits may not only be exercised originally, when their road is first laid out, but continues to exist afterwards; and if, after they have commenced operations, it is found necessary, in the judgment of the company, to make further uses of the land assigned to them for purposes incidental to the safe and beneficial occupation of the road, by raising or lowering grade, cutting down hills, and removing trees, they have a right to do so to the same extent as when the railroad was originally laid out and constructed.” Brainard v. Clapp, 10 Cush. 6, 8, 10;Callender v. Marsh, 1 Pick. 418, 432.

Thus the law stood at the time of the location of this railroad, in 1845, and thus it still stands unless special provision for further compensation is made by statute. Boston v. Richardson, 13 Allen, 146, 159;Pierce v. Drew, 136 Mass. 75. It follows that the defendants must be presumed to have paid for the damage now sought to be recovered for, at the time of its original location, so far as such damage was proper to be considered; and even if the statutes now provided proceedings to recover damages against railroads in case of a subsequent change of grade, it would require a pretty strong argument to convince us that they were intended to give further damages in a case where full compensation had been paid originally. No such statute, however, has been called to our attention.

Again, the claim stated by the petitioner, which the court ruled was for cutting off all natural drainage of surface water from the adjacent lands, discharging surface water from the respondent's road-bed upon the adjoining land of the petitioner, and shutting off the view, light, and air from the petitioner's premises. None of these acts infringed any common-law rights of the petitioner. They would have been perfectly lawful on the part of any other adjoining owner, (Gannon v. Hargadon, 10 Allen, 106;Franklin v. Fisk, 13 Allen, 211;Bates v. Smith, 100 Mass. 181;Rathke v. Gardner, 134 Mass. 14;Keats v. Hugo, 115 Mass. 204;) and we are not aware that it has been decided in this commonwealth that they form a substantive ground of recovery under the railroad acts, although if land was taken, as it was, from the petitioner's predecessor in title, at the time of the original location, some portion of this kind of damage to the remaining land might be considered, according to Walker v. Old Colony & N.Y. Ry. Co., 103 Mass. 10. See Morrison v. Bucksport & B.R. Co., 67 Me. 353.

However this may be as against a railroad exercising such rights only as it acquires by its location, and subject to the duties imposed by statute, in the present case the respondents owned the fee by conveyance from the petitioner's predecessors in title, and had all the rights, as against the petitioner, that any other owner of the fee would have had. The petitioner treats the deed as if it were a mere release of the damages then due for the original location; but it is a...