New York & Erie Railroad v. Young

A railroad company is not liable for consequential damages occasioned by the location and construction of their road, unless made so expressly by Act of Assembly. A foreign railroad company, authorized by Act of Assembly, to construct a portion of its road through the state, is entitled to the same rights and privileges as a Pennsylvania corporation. The right to erect a mill-dam in a navigable stream, given by the Act of 23d March 1803, is but a license, subject to be revoked, whenever the paramount interests of the public shall require it. An injui'y to such right, occasioned by the construction of a railroad, under authority of law, is not one for which the railroad company is liable to make compensation in damages. It would be error to leave it as a question of fact to the jury, whether the company could, without unreasonable expense, or undue injury to the road, have so changed the site of it, as to avoid having caused the damage complained of. The company alone are intrusted with the location of their road, subject to the liability imposed on them, by law, for the damages thereby occasioned.

Error to the Common Pleas of Susquehanna county. This was an action on the case by Elias T. Young against The New York and Erie Railroad Company, to recover- damages arising from the construction of the defendants’ railroad, along the bank of the Susquehanna river. Under the Act of 23d March 1803 (Brightly’s Purd. 599), the grantor of the plaintiff had erected a dam across the Susquehanna river, below where the alleged injury took place, for the purposes of his mill. And the injury complained of was caused by throwing dirt over the bank of the river, so as to make an embankment along the shore; and by carrying out the bank at one place, where there was a natural, projection, called “the point,” so as to divert a portion of the water from the plaintiff’s mill, and fill up the channel to the same. The defendants were authorized by the Act 16th February 1841 (Pamph. L. 28), to extend their road through such portion of the county of Susquehanna as, in the proper construction of their road, they might find it necessary. And in pursuance of the authority given them, they procured a conveyance of the right of way, through the mill lot of the plaintiff; and the conveyance of all the land along where the injury complained of was .done, from other persons, and the right of way through the same. A high bluff came down to the river along where the injury complained of was committed. The railroad was cut into the bluff, along the shore of the river; and it became necessary, for its protection, to carry out an embankment some feet into the river, along this bluff. The plaintiff was not the owner of the land at this point, but his mill was situated about 150 rods below, on the same side of the river. The court below (Bullock, P. J.), in answer to points presented by the defendants’ counsel, instructed the jury as follows:— “ In this case the plaintiff brings suit to recover consequential damages, for injuries .which he says he has sustained by the defendants having obstructed the course or channel of the water running to his mill, and thereby diminishing his supply of water and injuring the mill privilege. It appears from undisputed testimony, that prior to 1813, a man by the name of Buck, erected a mill and built a dam from the main land to Buck’s Island, as it was called; which mill and dam have been kept by said Buck and those claiming under him to the time of bringing this suit. That the defendants are a corporation created by statute of the state of New York, and coming into this state by virtue of an Act of Assembly of this state, passed in 1841, by which act they were authorized to make and construct a portion of their road within the county of Susquehanna, in the manner mentioned in said Act of Assembly. It is alleged, that in the making, construction, and keeping in repair of this road by the defendants, the injury complained of was committed. The evidence in relation to this injury, has occupied much time, and in calling it to your minds somewhat in detail (as is here done), you will judge how far any damage has resulted to plaintiff, consequential upon acts done by defendants, as alleged by him. The witnesses differ considerably in their statements of existing facts, and it is for you to determine, from the whole evidence, whether any damage has been sustained by the plaintiff. An important question here arises, upon matters of law connected with the case. We are all bound by the laws as construed by our courts of the dernier ressort; and whatever our feelings and sympathies may be in a case, they must be controlled by the decisions of the Supreme Court. Several propositions have been submitted by the counsel for the defendants, on which we are requested to give you our opinions and directions, in the order in which they are presented to us. “1. We are requested to give you in charge — ‘That no title having been shown out of the Commonwealth, to the lands adjoining the dam and saw-mill of the plaintiff on the Susquehanna river, he is not the owner of said lands so as to authorize the erection of said dam; and said dam is such a nuisance as that plaintiff cannot recover for any injury to the same, for consequential damages arising from the acts of defendants, above the dam and along the bank of the river.’ “ This being submitted to us as matter of law, we say to you as our opinion by which you are to be governed, until such opinion is reversed by a higher court, that from the long-continued and undisputed possession of this mill privilege and the grounds there* with connected, by the plaintiff, and those under whom he claims, and the dam having been erected more than forty years ago, as appears by the testimony, we think the dam, and the erection of the same, cannot, in any point of view, be considered such a nuisance as to prevent a recovery in this suit, notwithstanding no title has been shown out of the Commonwealth, if the evidence otherwise warrants a recovery. “2. We are further requested to give you in charge — ‘That the defendants, by their charter, had full power to extend their road through any portion of the county of Susquehanna they might find necessary in its proper construction, and for any consequential damages arising from the proper construction, are not responsible to the plaintiff.’ “ To this we reply, and give you as the law in the case, that the New York and Erie Railroad Company were authorized by the Act of 1841 to make their railroad, or a portion of the same, in Susquehanna county, and are not liable for consequential damages arising or resulting to the plaintiff while acting in pursuance of the rights and privileges given by said act; and that if, from the necessity of the case, consequential damages resulted or happened to the plaintiff, or to any individual, the company will not be liable for the same. Such is the decision of our Supreme Court, as found in 6 W. & S., pages 101-112, and to which we must conform. If they have gone beyond the rights granted them by the act in question, then they are liable. To illustrate — If it had become necessary in making the road to interrupt and turn the course of some small stream of water, which supplied a large tannery, by which said tannery was rendered of no value, yet no damage could be recovered of the company, for the act authorizing the making of the road protects them from such unavoidable consequences. If, on the other hand, the company could, by incurring additional expenses to a reasonable amount, have made the road without obstructing said stream, they would be liable for the damage sustained. “ 8. We are requested further to give you in charge — ‘ That, as the acts complained of were all done in the prosecution of the rights and the exercise of the powers conferred by the statutes of this state upon the defendants, the plaintiff is not entitled to recover.’ “ To this we answer and say, that it is for the jury, and not for the court, to decide whether the company, in making the road as complained of by the plaintiff, did go beyond the rights granted them by the legislature. “4. We are also requested to give you in charge — ‘That if the plaintiff, or those under whom he claims, were or had been the owners of the lands adjoining the dam at the saw-mill, still the right to erect the dam, under the provisions of the Act of 1803, gave no power or control of the waters of the Susquehanna which the state might not at anytime annul, or revoke, or grant to others; and that the grant by the state to the defendants, fully justifies them in all they did in the construction of their road, upon the plaintiff’s own evidence, and that he is not entitled to recover.’ “ To this we say, that the state, as appears by the decisions read, had the full right to revoke or annul any privileges given to the plaintiff, or those under whom he claims, by the Act of 1803; that the defendants had the full right to make said road as provided in the Act of 1841; and if the jury believe the company did not, in making said road, transcend those rights so given, the plaintiff cannot recover. Thus, if the jury believe that damage has been sustained by the plaintiff, by reason of the embankments having been extended into the river, or the natural channel been obstructed by the acts of the defendants, so as to diminish the supply of water for the mill by changing the current of water running to the mill, or otherwise, and that the defendants might, by incurring reasonable expense, have made and constructed the road further back, or have deposited the dirt in constructing the road, or in removing the same from the slides, in some other place, so as to have avoided causing the obstructions and injury to the plaintiff complained of, then the plaintiff would be entitled to recover; otherwise, he would not be so entitled; and in reference to reasonable expenses so to be incurred, we would say, that it could not be expected that defendants would have to call into requisition an immense amount of wealth to have changed the location of the track, or to avoid making the obstructions (if any), but it means exactly a reasonable and rational expenditure to surmount the obstacles presented. The jury have heard the testimony of several witnesses upon this point, and their statements as to the effects and expense of cutting further back into the hill, and the situation of the travelled road not far up the hill, and the rise of ground beyond that, as detailed, in the evidence, and will decide on this point as they think the evidence may warrant. 44 5. We are requested to charge you, — 4 That all the acts proven by the plaintiff to have been done by the defendants, were within the powers conferred by the legislature, and for them the defendants are not responsible to the plaintiff.’ 44 To this we answer and repeat,4 that it is for the jury, and not for the court, to decide whether the acts done by the defendants, were within the powers conferred by the legislature.’ They have heard the law read; they are to judge from the facts, whether the defendants have done anything in contravention of or beyond the rights granted by that law. 44 6. We are requested lastly to give you in charge, — 4 That the only responsibility for damages to which the defendants were liable for acts done by them in constructing their road, are those mentioned by the statutes ; and they are not in any case liable for consequential damages.’ “ To this we again say, that the company are not liable for consequential damages arising from acts done in making the road, if they could not, without unreasonable expense to the company or undue injury to the road, have so changed the site of the same as to avoid having caused such damages, and that is matter of fact for the jury. “ The counsel who just addressed you on the part of the defence requested us to charge you, as matter of law, that if the plaintiff can recover anything, it can only be for injuries sustained within six years prior to the commencement of this suit, which was commenced on the 7th July 1855. We think this is correct, and that the plaintiff is entitled to the actual damage he has sustained in the premises, between the 7th of July 1849 and the 7th of July 1855, if you think the evidence, under the law as laid down to you, will entitle him to a recovery. A deed, or rather the record of a deed, has been given in evidence, of a sale of this mill property, made by the plaintiff, about the date of bringing this suit, for the sum as expressed in the deed of $20,000; and this was urged as going to show he has sustained no loss, it being for a far greater sum than some of the witnesses estimated the value of the property. This may be some evidence, or have some bearing to that effect, but very small or faint on that point. The consideration named in the deed very frequently is but a small index of the actual sale, or the real value for which the property sold. It may have been an exchange, or perhaps no pay received, or it may be for the full amount expressed, but it is entitled to only slight consideration in making any estimated value of the property. The true question is, whether the defendants had made themselves liable, in view of the instructions here given you, and from the evidence in the case; and if so, then the injury actually sustained by the plaintiff to the bringing this suit, should be the measure of your verdict; and if not, then should it be for defendants.” To this charge the defendants excepted; and.a verdict and judgment having been given, for the plaintiff for $1400, they removed the cause to this court, and here assigned the same for error.