CHAPTER X. LIABILITY FOR TORTS IN GENERAL. Injuries to Real Estate. The liability of a railroad company for torts or actionable injuries to real estate is substantially the same as that of individuals, and it is not limited to the legal capacity of the corporation.1 It is in general determined by the principle sic utere tuo ut alienam non lædas, as applied to the relations of individuals; but under statutes the citizen may have larger rights against the company than at common law.2 Whether the landowner's redress is by action at law will depend on the scope and limits of the special remedy usually provided by statute for inju ries to private property, which are authorized by the State in the exercise of its right of eminent domain. Statute Remedies exclusive. Usually, where the legislature authorizes the taking of private property for a public use, it provides, as already stated, a special remedy for determining his compensation; and this remedy excludes actions at common law for all acts and proceedings which are within the statute and its remedy. The special remedy, however, does not exclude actions at common law for injuries which were not authorized by statute, or for those which result from the negligent and unskilful use of powers conferred by the statute. The special remedy is more comprehensive in some States than in others, and, therefore, an interference with private rights which comes within it in one 1 National Bank v. Graham, 100 U. S. 699, 702, Swayne, J.: "Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application." See Doolan v. Midland R. Co., L. R. 2 App. Cas. 792. 321; Eaton v. Boston, C., & M. R. Co., 51 N. H. 504; Thompson v. Androscoggin R. I. Co., 54 N. H. 545, 58 N. H. 108; Wabash & E. Canal v. Spears, 16 Ind. 441; Morrison v. Bucksport & B. R. Co., 67 Me. 353; Hurdman v. North Eastern R. Co., L. R. 3 C. P. Div. 168. 8 Ante, Chap. VII., EMINENT DOMAIN, 2 Phil. & R. R. Co. v. Yeiser, 8 Pa. St. 366; Pittsburg, Ft. W, & C. R. Co. v. Gilleland, 56 Pa. St. 445; Burroughs v. Housatonic R. Co., 15 Conn. 124; Hooker v. New Haven & N. Co., 15 Conn. 312, p. 179. p. 177 4 Ante, Chap. VII., EMINENT DOMAIN, State will in another be a cause of action at common law.1 Thus, actions at law have been maintained against the railroad company, where, under due authority of law and in the prudent construction of its works, it diverted streams of water from their natural course, depriving the land-owner of his right to the reasonable use of the water; 2 turned water upon land of persons not crossed by the railroad; disturbed the natural support of the adjoining proprietor's soil; threw stones in blasting on land outside of its location; 5 changed the grade of a street, and laid tracks on it to the injury of the owner of land lying on it; and constructed its road upon a turnpike to the injury of the company owning it. Some, if not all, of these injuries, when resulting from the lawful and proper construction of the railroad, are in other States held to be included within the special remedy. The points here noted have been already considered in an earlier chapter, where the authorities are cited and illustrations given.9 Consequential Injuries not actionable. The company, like any other proprietor, is not liable at common law for injuries resulting to others from the use of its location, where it conducts its business with proper care and skill, and does not exceed its powers. It is entitled to do within its location the things necessary and usual in the construction, maintenance, and working of its railroad, and is not responsible, except under statutes, for damage suffered in the reasonable exercise of this right.10 Thus, 1 Ante, Chap. VII., EMINENT DOMAIN, p. 176. 2 Stodghill v. Chicago, B., & Q. R. Co., 43 Iowa, 26; Robinson v. New York & E. R. Co., 27 Barb. 512. & Eaton v. Boston, C., & M. R. Co., 51 N. H. 504; Robinson v. New York & E. R. Co., 27 Barb. 512. 4 Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Richardson v. Vt. Cent. R. Co., 25 Vt. 465; Hatch v. Vt. Cent. R. Co., 25 Vt. 49, 63; Eaton v. Boston, C., & M. R. Co, 51 N. H. 504, 521, 528, 529; People v. Canal Board, 2 Thomp. & C. 275. But see Boothby v. Androscoggin & K. R. Co., 51 Me. 318; Hortsman v. Covington & L. R. Co., 18 B. Monr. 218. The company is liable for injuries arising from such excavation when not conducted with proper precautions. Rau v. Minn. Valley R. Co., 13 Minn. 442; Cahill v. Eastman, 18 Minn. 324. 5 Carman v. Steubenville & I. R. Co, 4 Ohio St. 399; Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163. For liability for a personal injury by negligence in blasting, see Driscoll v. Newark & R. L. & C. Co., 37 N. Y 637. Protzman v. Indianapolis & C. R. Co., 9 Ind. 467 7 Seneca Road Co v. Auburn & R. R. Co., 5 Hill, 170. 8 Dodge v. County Com'rs, 3 Met. 380; Proprietors of Locks & Canals v. Nashua & L. R. Co., 10 Cush. 385; Curtis v. Eastern R. Co, 14 Allen, 55, 98 Mass. 428; Boothby v. Androscoggin & K. R. Co., 51 Me. 318; Whitehouse v. Androscoggin & K. R. Co., 52 Me. 208; Sabin v. Vt. Cent. R. Co., 25 Vt. 363. 9 Ante, Chap. VII., pp. 174–177. 10 See authorities cited ante, Chap. VII. pp. 197, 198. when using due care and skill in the construction and operation of its road and machinery, it is not liable at common law for fires communicated to property by sparks issuing from its engines;1 for injuries caused by the explosion of its steam-boilers; 2 for injuries to cattle frightened by the headlights or noise of its engines; for inconveniences like noise, smoke, sparks, stench, or jarring caused by its trains; or for the accumulation of snow on the adjoining owner's land caused by structures erected within the location to prevent the tracks being obstructed by snow.5 3 Injuries caused by the Lawful Use of the Location not actionable. The company's right to its location, except at the crossings of ways established by law, is practically exclusive, and it may within it do all acts necessary and proper for the construction and operation of its road. The company is presumed to have paid compensation to the land-owner in the mode prescribed by statute for all injuries necessarily resulting from the proper execution of the authority conferred upon it. Accordingly, it is not liable for injuries to adjoining owners arising from the lawful use of its location. Its right to its location is, however, limited to the uses for which the property was taken, and is not equal to that of an ordinary proprietor, who may use his land for all lawful purposes.7 The Company's Right to its Location Subject to Public Exigencies. The company's right to the exclusive possession of its 1 Phil. & R. R. Co. v. Yeiser, 8 Pa. St. 366; Sunbury & E. R. Co. v. Hummell, 27 Pa. St. 99; Burroughs v. Housatonic R. Co., 15 Conn. 124; Thompson v. Androscoggin R. I. Co., 54 N. H. 545, 556, 58 N. H. 108. The company's liability for injuries by fire, at common law and under statutes, will be treated in Chap. XVI. 2 Losee v. Buchanan, 51 N. Y. 476. 3 Bellefontaine & I. R. Co. v. Schruyhart, 10 Ohio St. 116; Hahn v. Southern Pacific R. Co., 51 Cal. 605. 4 Randle v. Pacific R. Co., 65 Mo. 325; Hentz ". Long Island R. Co., 13 Barb. 646; Cleveland & P. R. Co. v. Speer, 56 Pa. St. 325; Burton v. Phil., W., & B. R. Co., 4 Harring (Del.) 252; Illinois Cent. R Co. v. Grabill, 50 Ill. 241; Eames v. New England Worsted Co., 11 Met. 570; Presbrey v. Old Colony & N. R. Co., 103 Mass. 1; Walker v. Old Colony & N. R. Co., 103 Mass. 10. See two early conflicting cases in New York, in both of which there was the same plaintiff, being actions for running trains illegally on Sunday during public worship in the vicinity of and to the annoyance of a religious society. First Baptist Church v. Schenectady & T. R. Co., 5 Barb. 79; First Baptist Church v. Utica & S. R. Co., 6 Barb. 313. Compare Hatch r. Vt. Cent. R. Co., 25 Vt. 49, 62; State v. Tupper, Dudley (S. C.), 135; ante, Chap. VII. pp. 197, 198, 208, 217. 5 Carson v. Western R. Co., 8 Gray, 423; Eaton v. Boston, C., & M. R. Co., 51 N. H. 504, 527. 6 Chap. VII., EMINENT DOMAIN, pp. 159-161, 197. 160. 7 Chap. VII., EMINENT DOMAIN, p. right of way must yield at times to superior public exigencies. The proper public authorities, acting upon the maxim, salus populi suprema est lex, may, in order to extinguish a fire, lay a hose across the track; and the company is liable to the town or city which owns the engine, when, after due warning or notice, it wilfully or negligently severs the hose by running the train over it. It is likewise liable, when thus in default, for the burning of a building which but for its unlawful act would have been saved; and its wrong is deemed the proximate cause of the injury. The proper public officers may enter on the track to build or repair public highways and bridges which are lawfully laid across it.1 Grants and Licenses. A grant or license, or request from the land-owner, will justify the company's interference with his property which would otherwise be a trespass. The grant of land for the purposes of the railroad, or of authority to build and maintain it, implies a license to do all acts necessary and proper for the construction and maintenance of the railroad, and such grant is a defence to actions of tort for acts coming within it.5 A grant or license, while justifying acts within it, will not relieve the company from liability to an action for the consequences of its want of care and skill in constructing and managing the authorized works.6 Where Injuries from the Choice of or Changes in the Location. the company has a discretion in the choice of a location, it is not liable to an action for selecting one rather than another, on the ground that another would have been less injurious to the landowner. A land-owner who suffers injury which is common to 1 Taylor v. Plymouth, 8 Met. 462, 456. 2 Hyde Park v. Gay, 120 Mass. 589. 3 Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277; Atkinson v. Newcastle & G. W. Co., L. R. 6 Exch. 404. But see Mott v. Hudson River R. Co., 1 Robertson, 585, 8 Bosw. 345. 4 Sweeney v. Boston & A. R. Co., 128 Mass. 5; North Penn. R. Co. v. Stone, 3 Phil. 421. 5 Babcock v. Western R. Co., 9 Met. 553; Boothby v. Androscoggin & K. R. R. Co., 51 Me. 318; Hortsman v. Lexing ton & C. R. Co., 18 B. Monr. 219; Hills v. Boston & M. R., 18 N. H. 179; Ludlow v. Hudson River R. Co., 4 Hun, 239; Clark v. Vt. & C. R. Co., 28 Vt. 103; Mathews v. St. Paul & S. C. R. Co., 18 Minn. 434; Illinois Cent. R. Co. v. Allen, 39 Ill. 205; ante, Chap. VI. pp. 132-134. 6 Selden v. Delaware & H. Canal Co. 29 N. Y. 634, 24 Barb. 362; Hatch v. Vt. Cent. R. Co., 25 Vt. 49, 69, 70; Spencer v. Hartford, P., & F. R. Co., 10 R. I. 14; ante, Chap. VI. p. 134; Chap. VII. p. 180. 7 New York & E. R. Co. v. Young, 33 Pa. St. 175. other citizens in the vicinity in the depreciation of his property, by the removal of the company's location to some point more remote from his property, has no right of action against the company. A deviation from the lawful location at one point cannot be taken advantage of by a person who owns land at another point, which is included within it. The company is liable for an entry to make a new location after its power has been exhausted. Actions for Trespasses and Abuse of Powers. The statute remedy does not exclude actions at common law for injuries which the special tribunal had no right to take into account. In an assessment it is presumed that the company will execute its authority in a lawful and proper manner. Therefore, where it transcends or abuses its powers to a person's injury, he has his remedy at common law.* The company is liable to an action at common law for a trespass which preceded an entry or occupation under due and legal proceedings.5 It is liable to an action where it constructs its road outside of its location; or without authority appropriates materials outside of it;7 or enters on the adjoining land to construct a drain; or to use such land as a cart-way or for other purposes; or unlawfully obstructs an easement, as a right of drainage, passage, or access.10 9 8 It is liable to an action for injuries caused by the negligent and unskilful construction of its road. Thus, while necessary injuries caused to land-owners in the blasting of rocks within the location may be within the special remedy, it is liable to an action if it fails, within a reasonable time, to remove them from the adjoining land on which they were thrown.12 It is liable for the 1 Kinealy v. St. Louis, K. C., & N. R. Co., 69 Mo. 658. But see Baltimore & S. R. Co. v. Compton, 2 Gill, 20. 2 Newton v. Agricultural Branch R. 363. Co., 15 Gray, 27. 3 Little Miami R. Co. v. Naylor, 2 Ohio St. 235; ante, Chap. IX. pp. 254, 255. 4 Ante, Chap. VII., EMINENT Domain, p. 179. 5 Ante, Chap. VII., EMINENT DOMAIN, p. 179. 6 Hazen v. Boston & M. R., 2 Gray, 574; Eaton v. European & N. A. R. Co., 59 Me. 520, 537. 7 Parsons v. Howe, 41 Me. 218. 9 Sabin v. Vt. Cent. R. Co., 25 Vt. 10 Proprietors of Locks & Canals v. Nashua & L. R. Co., 10 Cush. 385; Bell v. Midland R. Co., 10 C. B. N. s. 287. 11 Chap. VII., EMINENT DOMAIN, p. 179. 12 Sabin v. Vt. Cent. R. Co., 25 Vt. 363; Whitehouse v. Androscoggin R. Co., 52 Me. 208; ante, Chap. VII., EMINENT DOMAIN, p. 175. |