Town of Troy v. Cheshire Rail Rd. Co.

CourtSuperior Court of New Hampshire
Citation23 N.H. 83
Decision Date01 December 1851

23 N.H. 83


New Hampshire Superior Court

December 1, 1851

Towns have a qualified interest in the roadways and bridges they have erected, and may maintain an action upon the case for the destruction or obstruction of the road, or the conversion of the materials.

Where a statute authorizes the doing of certain acts, and provides a remedy for the recovery of damages occasioned thereby, the party injured is confined to the statute remedy for such damages. If the statute remedy extends only to a part of the injury which may be occasioned, the injured party may have his action at common law for the residue.

In case for a nuisance, if the act done is necessarily injurious, and is of a permanent nature, the party injured may, at once, recover his damages for the whole injury.

If the act done is not necessarily injurious, or if it is contingent whether further injury may arise, the plaintiff can recover damages only to the date of his writ.

If some damages necessarily result to the plaintiff, in judgment of law, from the acts complained of, the declaration will be sustained, on motion in arrest of judgment, without an allegation of special damages.

CASE. The first count stated, that on the tenth day of July, 1847, there was a public highway in Troy, leading from Troy village towards Keene, and which the town was liable to repair; and there was upon the highway, and forming a part of it, near, &c., a valuable stone bridge, in good repair, and suitable for the accommodation of the public; that the railroad company had built a railroad passing near to, and partly upon and over, the said highway, before the day aforesaid, and were proceeding in the construction of their railroad, and on said day did, in constructing their railroad, cause obstruction and injury to the said highway and to said bridge, by demolishing and destroying the bridge, and converting to their own use, the materials thereof, and by erecting, upon the site of the bridge, a railroad bridge, impassable by the public travel, and by occupying with the rails, embankments and excavations of the railroad, a part of the highway, seventy rods long, lying northerly of Cobb's bridge, so called, and the railroad bridge, and by placing upon

23 N.H. 84

another part of said highway, lying northerly of the railroad bridge, a quantity of large stones, and by erecting upon and along the travelled part of the highway, near, &c., a fence thirty rods long, by means of which the highway was, in the travelled part thereof, narrowed, and rendered steep, uneven, inconvenient, difficult and unsafe to pass; of all which the said railroad company, on the twenty-ninth of November, 1848, were duly notified, in writing, whereby and by force of the statute, &c., an action has accrued to the plaintiffs to recover their reasonable damages, &c.

The second count was, in the same form, to the allegation of notice in writing; and then adds, "but the said company, intending to injure the plaintiffs, &c., did not remove the obstructions, but permitted them to remain from the twenty-ninth of November, hitherto, being more than sixty days after notice; whereby, &c."

The sixth count alleged, that on the tenth of July, 1847, there was a highway in Troy, called Cobb's road, leading, &c., which the town was bound to repair; and that the company built their road across said highway, and were then and there proceeding in the construction of their road, and that the company did, in so constructing their road, cause obstruction and injury to said Cobb's road, by erecting across it an embankment of earth, whereby it was rendered steep, inconvenient and difficult to pass, of all which the said company, on the twenty-ninth of November, 1848, were duly notified, in writing, whereby, and by force of the statute, &c., an action has accrued to the plaintiffs, to recover reasonable damages, &c.

The seventh count alleged notice, and a continuance of the obstruction to the date of the writ, as in the second count.

At the trial, upon the general issue, the defendants contended, that the plaintiffs could not recover any damages, except for money which they had been compelled to pay, and that there should be a special allegation in the writ to that effect; nor any damages, except for expenditures actually incurred, nor without a special allegation. The defendants offered their charter in evidence, and contended, that the plaintiffs had no right to

23 N.H. 85

maintain this action, in cases where a remedy was furnished by the charter; also, that the plaintiffs could not recover for any acts of the defendants, not necessarily incident to the construction and maintenance of the road; nor for the value of materials, nor for making the road less convenient if not actually insufficient, nor for prospective damages.

The court instructed the jury, that it was the duty of the defendants to leave the highways in such a condition that it would cost the town no more to keep them in repair, or to make them reasonably convenient for the public travel, than it would cost before the defendants built their road; that the town could not recover damages, for a mere inconvenience, which did not make the road any more expensive to be kept in repair, or did not render it necessary for the town to expend any more money to make it reasonably convenient for the public travel, than was necessary before the railroad was built; that if the building of the railroad rendered the highway more expensive to be kept in repair, or made it necessary for the town to expend more money, in order to make it reasonably safe and convenient for the public travel, than was necessary before the railroad was built, the town might recover reasonable damages; that where the railroad had so obstructed the highway, that the public travel could not pass, and had been compelled to go round the obstruction, the common travel must have a mode of passing, and it was but reasonable, that the town might recover what it would cost to provide it, if any sum were necessary to be expended for that purpose; and that the town might recover whatever it would cost, by reason of the action of the railroad, to make the highway reasonably wide, safe and convenient, for the public travel. The court also ruled, that the mere liability to accidents which might happen by reason of the vicinity of the railroad to the highway, was not a cause for which the town could recover damages.

The sixth section of the defendants' charter provides, that if the said railroad shall in the course thereof, intersect any canal, turnpike, or other highway, the said railroad shall be so constructed, as not to impede or obstruct, the safe and convenient use

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of such canal, turnpike, or other highway; and the corporation shall have power to raise or lower such turnpike, highway, or private way, so that the railroad, if necessary, may conveniently pass under, or over, the same; and if said corporation shall raise or lower any such turnpike, highway or private way, and shall not so raise or lower the same, as to he satisfactory to the proprietors of such turnpike, or to the selectmen of the town, in which said highway or private way may be situated, as the case may be, said proprietors, or selectmen, may require, in writing, of said corporation, such alteration or amendment as they may think necessary; and if the required alteration or amendment be reasononable and proper, in the written opinion of the road commissioners for the county in which such amendment or alteration is proposed, and the said corporation shall unreasonably neglect to make the same, such proprietors, or selectmen, as the case may be, may proceed to make such alteration or amendment, and may institute, and prosecute to final judgment and execution, any action on the case against said corporation; and shall therein recover reasonable damages, for all charges, disbursements, labor, or services, occasioned by making such alterations or amendments, with costs of suit.

The jury retuned a verdict for the plaintiffs. The defendants excepted to the instructions, and moved that the verdict be set aside; they also moved in arrest of judgment, because it is not alleged in the declaration, that the town has been compelled to pay any damages, or has paid any money.

Wheeler for the defendants.

1 The plaintiffs are not entitled to judgment, because there is no allegation, in the declaration, that they have been compelled to pay any damages, or had incurred any expenditures, in consequence of the alleged wrongful acts of the defendants. The town was not the absolute owner of the highway, or of any of the materials of which it was composed. The public had only an easement in the highway; and the town had no other or greater rights therein than the public. State v. New-Boston, 11 N. H. Rep., 407, and the authorities there cited. The title

23 N.H. 87

to the soil remains in the original owner. Copp v. Neal, 7 N. H. Rep., 275. The statute imposes certain duties upon towns, in regard to highways; but their pecuniary interest extends only to the sums paid, to put and keep the highways in repair, and the damages paid to those sustaining injury, through the want of repair. From the very nature of the plaintiffs' interest in the highway, the damage, if any, must have been special. The acts complained of, did not, necessarily, cause damage to the plaintiffs. And when the damages are not the necessary result of the acts complained of, they must be particularly specified in the declaration. 2 Greenl. Ev., 209, and the authorities there cited.

2. The defendants' charter provides a remedy for most of the alleged wrongs set forth in the declaration; and no action can be maintained against the defendant, under the act of 1847, in the cases where a remedy is furnished by the charter. The rights and liabilities of the defendants were clearly defined in the charter; and if the town suffered...

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