Thomson v. Sebasticook & M. R. Co.

• Decision Date: 10 December 1888
• Citation: 16 A. 332,81 Me. 40
• Parties: THOMSON v. SEBASTICOOK & M. R. CO.
• Court: Maine Supreme Court

16 A. 332

81 Me. 40

THOMSON

v. SEBASTICOOK & M. R. CO.¹

Supreme Judicial Court of Maine.

December 10, 1888.

Exceptions from supreme judicial court, Somerset county.

Appeal from the award of county commissioners for damages sustained by the complainant in the location of defendant's railroad over her land. At the trial the complainant claimed that the land taken was valuable for house lots, but the defendant claimed that it was unfit for that purpose by reason of the water standing thereon during a portion of the year. The complainant thereupon offered to prove that the standing water was caused by obstructions in a drain passing under defendant's railroad, and by the location of another railroad. The court ruled that the complainant could not prove a permanent obstruction to the flow of the water there, but subsequently evidence covering the same point was admitted without, objection. Upon this branch of the case the court instructed the jury as follows: "It is said that the land itself is not wet or flowed naturally to any considerable depth, but what flowing is caused there, or mainly caused, is by virtue of some obstructions which were put in in past time. All permanent obstructions I excluded for this simple reason: If this railroad was bound to pay for this land as good land, when it was made bad, unvaluable for the parties, by some other person, for instance the Maine Central Railroad, not putting their culvert right, then they could get pay for their land twice, because they would have a perfect remedy against the person who made the obstruction, and if they could have another remedy it would give them double pay. But, whether their remedy is good or not, this corporation is not bound directly or indirectly to pay for any wrong done by any other person, or any other corporation; but what would be a mere temporary obstruction, carried there accidentally or otherwise, would be proper to prove to a jury as to the real nature of the land," etc. The jury returned a verdict in favor of the complainant, but the complainant alleged exceptions to the exclusion of the evidence and the preceding instructions to the jury

Brown & Johnson and S. S. Hackett, for complainant. J. O. Bradbury and Merrill & Coffin, for respondent.

PETERS, C. J. If the rulings and instructions are correctly interpreted by the plaintiff's counsel, they were wrong. The question of the case is not very clearly presented. But with the burden on the plaintiff to show that he has ...