Summary
On exceptions and motion to set aside the verdict.
An action by the administratrix of Edwin F. Chase for personal injuries received while crossing the defendant’s railroad at a private crossing in Richmond, February 24, 1882.
The case has once before been considered by the law court and is reported in 77 Maine, 62.
It appeared by the evidence introduced at the trial, that before the location of the railroad, one Blanchard lived on the farm near the river, and had an ordinary farm way from his house to the highway ; that when the defendant’s railroad was constructed in 1850, it crossed this farm between the highway and the house, crossing this private way; that the railroad was fenced on both sides, with gates on this way in both fences; that the way was used only as a farm way, and the crossing only as a farm crossing down to 1870; in 1880, Kidder, the owner of the farm, sold land below the railroad to the Knickerbocker Ice Company, and granted them the right to use the way, from the highway to the land sold, crossing the railroad, for themselves, their workmen, and all persons having business to transact with them ; that in the winter of 1882, Kidder, at the request of the ice company, took down the gates; that the plaintiff’s intestate was at wrork for the ice company, and wras on the way to the river to work for them when the accident happened. The defendant contended that said Edwin F. Chase, at the time he received the alleged injury, was not, as against the defendant, in the rightful use of the way.
The verdict was for the plaintiff in the sum of three thousand seven hundred and seventy-five dollars, and the defendant moved to set this aside as being against evidence and because the damages wore excessive. The defendant also alleged exceptions to certain instructions of the presiding justice.
This is not a case of right of way by adverse user for a particular purpose, or by grant for specific use, as in Parks v. Bishop, 120 Mass. 340; Atwater v. Bodfish, 11 Gray, 150.
It is a general right of way to the land east of the l’ailroad, though used only for special purpose for farm from 1853 to 1870. Then for farm and ice purposes. Holt v. Sargent, 15 Gray, 102.
The cases are numerous where damages have been recovered for injuries at private crossing, and in some instances by those not entitled of right to use the crossing. Murphy v. B. & A.. JR. R. Go. 133 Mass. 121; Sweeny v. O. O. &e. R. R. Go. 10 Allen, 372; Randall v. Gonn. River R. R. Go. 132 Mass. 269 ; Barry v. H. Y. G. éc. Railroad Go. 13 Am. & Eng. E. E. Cas. 615; (92 N. Y. 380) ; Thomas v. Delaware, &c. R. R. Oo. 12 Eeporter, 739; (8 Fed. Eep. 728); O’Connor y. B. <& L. Railroad Co. 135 Mass. 362; (15 American and English, 362).
The doctrine contended for by the defendant is against public policy, as well as against the policy of this defendant itself. It has been applauded by all our citizens, with reason, too, for its efforts in aid and encouragement of the slumbering industries of the state; in every instance it has offered and afforded accommodation and conveniences for those engaged in b.uilding up and carrying on business enterprises contiguous to its road. In this case, it built a little station close by these Knickerbocker Ice Houses and Haynes & DeWitt Ice Company’s houses, for the convenience of these two ice companies in carrying their agents and employees back and forth.
This road leading across the railroad is for the convenience of Knickerbocker Ice Company, and no one else. It is the only route for teams from the public ways to its premises. If the Eailroad Company can stop their crossing, then it can stop the business, for there is no public convenience and necessity for the way. But we say again that the defendant is not aggrieved at this ruling. The evidence all the way along shows a license to the Knickerbocker Ice Company and their employees to use a crossing, and this is the only one they could use. They could not use either of the other two in the vicinity without trespassing on other land owners. The building of the station shows in the most emphatic manner the expression of a wish on the part of the railroad company to promote the ice business there, and it must be held to have knowledge of the fact that the business could not be carried on without employing large numbers of teams which could only reach the premises by this crossing. Many of the employees went back and forth on the trains every day, and sometimes whole carloads of men were brought. There is no difficulty in finding the license nor the manner in which the railroad company was compensated for it.
The questions of negligence of the defendant and contributory negligence of the plaintiff were for the jury. Webb v. P. & K. R. R. Co. 57 Maine, 117 ; Larrabee v. Bewail, 66 Maine, 376; Com. v. R. JR. Go. 126 Mass. 69 ; Hinckley v. R. R. Go. 120 Mass. 264; Eaton v. R. R. Go. 129 Mass. 364; OOonnor v. R. R. Go. 135 Mass. 352 ; Gopley v. R. 77 Go. 136 Mass. 6 ; Tyler v. R. R. Go. 137 Mass. 238 ; R. R. Go. v. Ncm Steinburg, 17 Midi. 99 ; 2?. 77. Go. v. Stout, 17 Wall. 657 ; 77. 77 Ob. v. MoMwee, 67 Pa. St. 311; Salter v. 77 R. Go. 88 N Y. 42 (8 Am. & Eng. R. Cas. 437,) ; Dobiecka v. Sharp, 88 N. Y. 203 (8 Am. & Eng. R. Cas. 485,) ; Barry v. 77 77 Go. 92 N. Y. 289 (13 Am. & Eng. R. Cas. 615,) ; Nehrbas v. R. R. Go. 14 Am. &Eng. R. Cas. 670, (Cal.) ; 77 R. Go. v. Com. 13 Bush. 388 (26 Am. R. 205, note,) ; 77 R. Go. v. Fitzsimmons, 22Kans. 686 (31 Am. R. 203, note,) ; Railroad Go. v. Oollarn, 73 fnd. 261 (38 Am. R. 134,) ; Bradley v. Boston & Maine Railroad, 2 Cush. 539; Unfield v. R. 77 Go. 10 Cush. 569 ; Com. v. Railroad Go. 101 Mass. 202 ; Bailey v. New Haven, &c. Go. 107 Mass. 497 ; Norton v. Eastern Railroad Go. 113 Mass. 369 ; Eaton v. Fitchburg Railroad Co. 129 Mass. 365 ; Besan v. Maine Gen. Railroad Go. 77 Maine, 85.
The railroad took this land for their roadway, subject, at most, to the incumbrance of the farm crossing, and were bound to pay, and the presumption is, did pay damages accordingly. Considering the nature of the use to which the company must put the land, the damages for taking it would be diminished by the easements to which it should be subjected; and there is a vast difference between an easement for a farm crossing and an easement for a way upon which, as was claimed at the trial, there is more travel than upon the majority of the highways in the town. The imposition of a greater easement is the basis of the company’s right to damages for laying out a way over it. That the easement of a railroad in its road-bed is property, for the taking of which, or the encumbering of which by laying out a way over it, the company is entitled to damages, under the Constitution, is now well settled. Old Colony, &c., Railroad Go. v. Oounty of Plymouth, 14 Cray, 155. This decision was affirmed in Grand Junction R. & D. Go. v. Middlesex, 14 Gray, 553. This principle has been fully recognized by the legislation of this state. Chapter 223 of Laws of 1880.
" The interest of a railroad company in its location, although technically an easement, is not limited to an ordinary right of way, such as is acquired for highways, but it justifies a use of the land for all the purposes of a railroad. Its possession, except at crossings established by law, is permanent in its nature, and practically exclusive, such possession being essential to a safe and effective working of its machinery.” Pierce on Railroads, p. 159.
" The landowner, where a right of way is not reserved by agreement, or fixed by statute, has no right to cross a- location which has divided his land.” Pierce on Railroads, pp. 160, 161.
In Mason v. Kennebec & Portland Railroad Go. 31 Maine, 215, it is held that a railroad company has the right to build an embankment for their road-bed across land so as to prevent communication between the two parts thus separated.
"The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” Hazen v. Boston & Maine Railroad, 2 Gray, 574, 580.
It is settled law that the taking of land for a railroad deprives the owner of all rights in the land, the exercise of which would interfere with the safe and convenient operation of the railroad. Brainard v. Clapp, 10 Cush. 6 ; Ourtis v. Eastern Railroad Go. 14 Allen, 55, 58: see Boston Gas Light Go. v. Old Colony & Newport Railroad Go. 14 Allen, 444.
"As the railroad company would have the right to take the land for the purposes of their road, if the fee, instead of the easement had belonged to the plaintiffs, it must follow, either that there is no right to destroy, by a railroad, the liberty which an owner has of passing over his land from one part of it to the other, in common with other modes of occupying and using it; or that the law has given some peculiar protection to the right to pass over the land of another, 'which it does not give to the right of passing over one’s own land.”
In this case, the case Boston & Worcester Railroad Go. v. Old Colony Railroad Go. 12 Cush. 605, was substantially overruled.
In Olark v. The B. O. & M. Railroad, Go. 24 N. II. 114, it was held that a man can not have a "private way,” in the statute sense, over his own land, and that the term "private way ” in the statute refers to private ways laid out under the provisions of the statute.
In March v. P. <& G. Railroad Go. 19 N. II. 378, it was suggested that such a way as a farmer has over his farm may be a " private way ” within the meaning of the railroad laws, and, therefore, that a landowner was entitled to have suitable crossings made for his use. But this suggestion was expressly overruled in the case last cited, as well as anything looking in the same direction in Dean v. Sullivan Railroad Go. 22 N. II. 316. See Horne v. Atlantic dé Si. Lawrence Railway Go. 36 N II. 440; Gonn. and Pass. Rivers Railroad Go. v, Hilton, 32 Vermont, 43.
In Troy & Boston Railroad Go. v. Potter, 42 Vermont, 265, the preceding case was cited and approved.
In a case (Ham v. Salem, 100 Mass. 350) involving the same principle, the court says : " The company may reserve to the owner such rights of way or other rights as they deem proper; and the record will show that they are reserved. Such reservations may diminish his claim for damages. But no rights not thus reserved will exist.” Seo Presbrey v. O. G. S N. Railroad Go. 103 Mass. 1; Proprietors of Locks and Ganáis v. _ZV. <& L. Railroad Go. 104 Mass. 1; Old Golony Railroad Go. v. Miller, 125 Mass. 1; Drury v. Midland Railroad, 127 Mass. 571; Murphy v. Boston & Mb. Railroad, 133 Mass. 121.
On the question of negligence counsel cited: L. S. & M. S. Railroad Go. 25 Mich. 274; Wheelock v. B. & A. Railroad Go. 105 Mass. 203; Todd v. Railroad Go. 3 Allen, 18; Gahagan v. Railroad Go. 1 Allen, 187 ; Todd v. Railroad Go. 7 Allen, 207; Butterfield v. Railroad Go. 10 Allen, 532; Lucas v. Railroad Go. 6 Gray, 64; Gavett v. Railroad Go. 16 Gray, 506; Nichols v. Railroad Go. 106 Mass, 463; Harvey v. Railroad Oo. 116 Mass. 269 ; Grows v. Railroad Oo. 67 Maine, 100; Kellogg v. Ourtis, 65 Maine, 59.
The plaintiff failed to prove that her intestate was in the exercise of ordinary care. It follows that if there is no proof on this point, or the proof is not sufficient, the action must fail. Brown v. E. & IV. A. Railway Oo. 58 Maine, 384; Merrill v. Hampden, 26 Maine, 234; Dickey v. The Maine Telegraph Oo. 43 Maine, 492 : Gh'ows v. Maine Central Railroad Oo. 67 Maine, 109; Same v. Same, 69 Maine, 412; Plummer v. The Eastern Railroad Oo. 73 Maine, 591; Pierce on Eailroads, page 298.
Among the Massachusetts cases to the same point are Lane v. Orombie, 12 Pick. 177; Lucas v. H. B. & T. Railroad Oo. 6 Gray, 64; Robinson v. F. & W. Railroad Oo. 7 Gray, 92; Gahagan v. B. (& L. Railroad Oo. 1 Allen, 187; Warren v. Fitchburg Railroad Go. 8 Allen, 227, 230; Butterfield v. Western Railroad Oo. 10 Allen, 532; Gavett v. M. & L. Railroad Go. 16 Gray, 501; Wilson v. Charleston, 8 Allen, 137; Murphy v. Deane, 101 Mass. 455 ; Ohaffee v. B. & L. Railroad Oo. 104 Mass. 108; Mayo v. B. & M. Railroad Oo. 104 Mass. 137; Allyn v. B. & A. Railroad, 105 Mass. 77; Wheelock v. B. & A. Railroad, 105 Mass. 203 ; Orafits v. Boston, 109 Mass. 519; Prentiss v. Boston, 112 Mass. 43; French v. T. B. Railroad Oo. 116 Mass. 537 ; Oraig v. N. Y. & FT. II. Railroad Oo. 118 Mass. 431; Hinckley v. O. O. Railroad Oo. 120 Mass. 257 ; Hickey v. B. & L. Railroad Oo. 14 Allen, 429; Oom. v. B. & L. Railroad, 126 Mass. 61; Gom. v. B. & M. Railroad, 129 Mass. 500.
The same rule exists in New York, 75 N. Y. 330.
According to the text books, the rule established in this State, as to the burden of proof, also prevails in Connecticut, Illinois, Indiana, Iowa, Massachusetts, Michigan, Mississippi, Georgia, Louisiana, North Carolina, Oregon and New York; and the opposite rule prevails in Alabama, California, Kentucky, Maryland, Minnesota, Missouri, New Jersey, Ohib, Pennsylvania, Wisconsin, and perhaps in Rhode Island and Texas.
In several of the latter States, however, the rule is expressly established by statute.
One author (favoring the latter rule) puts New Hampshire In the same list, citing 30 N. II., 188, and 35 N II., 356. The eases do not sustain him, and repeated decisions affirm the rule prevailing in Maine. See 41 N. H. 44, 135, 317 ; Liston v. Lyman, 49 N. H. 566, and cases cited; State v. Railroad, 52 N. II. 528, 537, 550.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
