Bangor, Oldtown & Milford Railroad v. Smith , 47 Me. 34 ( 1859 )

The opinion of the Court was drawn up by

Kent, J.

The first objection made by the defendant is that no authority is shown to commence this suit.

No motion to dismiss has been made, and no call for evidence on this point. If there had been, the offered evidence shows that the action is entirely for an alleged injury to the corporation and its rights; and the case finds that the plaintiffs offered to prove that they were at work finishing a branch track, and “ that the company were proceeding in the construction of the road,” under direction of its president, when the defendant interposed and obstructed the workmen of the company. In the absence of any proof that the suit was not authorized by the company, the Court must presume that it was properly instituted; and such assent may be presumed where the corporation is a nominal party only. Lime Rock Bank v. Macomber, 29 Maine, 564.

2. Defendant denies the right of the company to recover in this action, because, as he contends, there was no authority given by the corporation to Gen. Yeazie, and the other men engaged with him, to lay the track in question.

The case finds, as above státed, that the plaintiffs offered evidence to prove that the Corporation was at work finishing the branch track, and was proceeding in the construction of the road, at the place in question, under the direction of their president. As the case is presented, we are bound to assume that the plaintiff's did or could establish these facts by legal proof, and that the company authorized, recognized or ratified the acts done, and the purpose in view.

3. Defendant objects that the corporation could not lay this track, or cause it to be laid, because, he says that the additional Act of. 1847, by which the original Act of incorporation was extended ten year's, and a new authority given to extend the railroad and branches in Oldtown, was never accepted by the company.

There is no requirement in this Act of 1847, as contended by. the defendant, that the same must necessarily be accepted by a formal vote of the corporation. The 4th section has reference to a reorganization of the company by the owners of the railroad, if they saw fit. There is nothing in that section from which we can infer that any formal vote of acceptance of the provisions of the other sections was required. The Act in this respect stands upon the same ground as any other amendatory Act. Grants, beneficial to a corporation, may be presumed to have been accepted by them, the same as in case of natural persons. Charles River Bridge v. Warren Bridge, 7 Pick., 344.

In Coffin v. Collins, 17 Maine, 442, it is said, in relation to acceptance of a charter, “No formal vote of acceptance is necessary. It may be implied from proof of any regular corporate act.” In this case there is evidence that the company, by its directors, did, in September, 1854, vote to make an extension, authorized only by this additional Act of 1847, and did cause the same to be recorded and established. These proceedings clearly show an acceptance of the Act. Bank U. S. v. Dandridge, 12 Wheat., 64.

The next objection rests upon the position that there was no legal location or laying out.of this branch track, over the land where the resistance was made by defendant.

It seems quite clear that this branch or side track was not included in the description in the petition of the company, the survey, or the action by the County Commissioners, as exhibited in the records. There was a mere single line, without any width, marked on the plan filed. But there was no reference to this line in any of the above named papers or records, and no evidence that it was recognized as a laying out. The branch track actually laid out was exactly defined as but one branch or line of railroad, from the extension to the end of the mills. We must therefore conclude that this side track in question was not located by the above proceedings, or by any legal action in pursuance of the provisions of the statute.

But the case finds that the plaintiffs offered to prove that the company had assumed to lay the track, and was actually laying it, at the time and place of the acts complained of; and also that the place of interference was on land belonging to the president of the road, and that the work was proceeding by his express assent and under his direction. These facts we must assume as established by legal evidence. We have no doubt that a railroad corporation may lay side tracks for the purpose of facilitating its business operations, or to meet its necessities, over any land which it may purchase and own in fee, or over which it may obtain the legal consent of the owner to lay a track, if no public interest or private right is affected. The principal, if not the sole object of the provisions of the statute requiring a formal location and acceptance, and recording of the line of way, is that the rights of individuals in their lands, and the rights of the public in the highways and otherwise, may be protected and secured. At all events, we may safely assert that a private person, who has no right and interest in the land, and who sets up no claim of a right in any form to interfere, cannot, of his own mere will and motion, forcibly interpose to prevent the company from proceeding in their work of laying down a side track over land of their own,, or over which they have the license or consent of the owner to lay their rails. The defendant represents neither the State nor any individual landholder, and is therefore a wrongdoer, and must be held answerable for his illegal acts.

The next question- submitted has relation to the rule of damages.

This action is by the corporation for injuries to its corporate rights. Assaults upon individuals, or indignities offered to, or injuries suffered by them personally, cannot be considered in this action. Whatever loss or injury was sustained by the corporation by the wrongful interference and acts of the defendant, and were the natural results of such acts, would properly be regarded as damages to the plaintiffs. This rule would include the necessary loss of time of the workmen, the detention and suspension of the work for the time during which it was necessarily, obstructed or suspended, and all other damages, the manifest result of this illegal interference, and which the jury might, under all the circumstances, deem proper.

But the plaintiffs claim larger damages than the above rule might give to the corporation. It is asserted that the intention was to continue this track from the land of Gen. Yeazie until it reached the rails on the track before laid out across the county road, and specified in the records of the County Commissioners, before referred to; and, further, that the corporation had a legal right thus to extend the track, and that the ten years extension, granted in the Act of 1841, expired on the next day after the interference of defendant; and that, by that interference and forcible resistance, the corporation was unable to complete this branch track within the time limited by the Act, and thus suffered great loss and injury, which ought to be paid by the defendant. It is, perhaps, unnecessary to consider what the exact rule of damages would be, provided all the above positions were sustained as facts in the case; because we are of opinion that the corporation had no legal right to lay the track, in the manner proposed, within the limits of the county road or highway. The railroad company had already laid out and established a track across the county road according to law, and had built their road thereon, in the direction of “ the line of the railway.”

The claim now is, to lay this side branch from a point on the railroad, in the highway, not “ across” the road, in the “line of the railway,” but in a curved line more nearly parallel with the side lines of the road than with the line of the rails across it, and leaving the railroad entirely before it reaches the opposite or easterly side of the highway.

The corporation claims’ this right mainly on the ground that all of this curved line or turn out, is within the limits of the four rods laid down on the plan and in the record, as the width of the railroad where it crosses the street, and that within that width the company have a right to use the space to lay down a double track, or to make a turn out, as they proposed to do.

Under the original charter of 1833, the company was authorized and required, after having surveyed and adopted a section or division of their line, to deposit a description of the same in the clerk’s office, to be recorded, agreeably to section 4. They were, also, by section 5, authorized “to construct and carry their railroad on, over or across any roads, highways or other roads or ways, and construct any bridges or viaducts over or under the same, and to raise or lower any public or private road or highwaybut must leave such road or highway in a safe and passable state; and they must not “construct or carry their road over or across any other road in such a manner as to prevent, interrupt or impede the travel or transportation thereon.”

The exercise of these powers seems to have been left to the discretion and judgment of the railroad company, subject only to the interference of the public by indictment. for a nuisance, or to private individuals for any injury sustained by the abuse of power, or the neglect of the corporation, until the general law of 1853, which prescribes the mode and manner of crossing public highways.

A material question is, whether, as to this crossing, the corporation is bound by the Act of 1853. It will be observed that .all the proceedings in reference to the surveys and adoption of this branch, which crosses the highway at the place in question, were subsequent to the Act of 1853.

The original charter was in 1833, and subsequent, of course, to the general Act of 1831, by which all Acts of incorporation passed since March 17, 1831, are liable to be amended, altered or repealed by the Legislature, as if express provision therefor were made in them, unless they contain an express limitation.

The question does not relate to any thing done by this company, in the matter -of crossing highways, prior to 1853.

The Supreme Court in Massachusetts, in '-a case almost identical in its facts, on this point, with the case at bar, has decided that an Act, general in its terms, and applicable to all railroads in the Commonwealth, and in its terms specifically applicable to tbe case in question, is warranted by tbe general Act giving the Legislature power to modify Acts of incorporation, and that the Legislature may thus modify or alter such charters; particularly where the Act has reference to the remedy, and points out and provides for a more practical way of carrying out the provisions in the charter of the company. City of Roxbury v. Providence Railroad, 6 Cush., 431.

This seems to be the intent of the statute of this State, of 1853, c. 41; and we have no doubt that this company are bound to comply with its provisions, as to locating and making their road, and as to crossing any street or highway. The plaintiffs seem so to have understood it, and acted in accordance with its provisions in their votes, petitions, surveys and location of the branch track which 'crosses the road. The regularity of the proceedings of the company, and of the County Commissioners, is not contested; and, by those proceedings, and the record thereof, this branch was duly located across the highway in the general line of the railway, according to the provisions of the law of 1853.

What right did that location give to the company in the highway ? The right was that of transit — the right to lay down their rails, and carry their actual road over the highway, without curve or deflection from the line of the railway before it reached the highway — as provided in section 3. The right of the public in the highway is still paramount to that of the company, for all purposes except that of transit. State v. Vermont Central Railway, 27 Verm., 103; Commonwealth v. Nashua and Lowell Railroad, 2 Gray, 54; Ibid., 389.

The company does not take the land of the highway as real estate of individuals is taken, nor does it acquire the right to take all materials in or upon the highway to be used for the railroad, as in that case. The railroad company cannot dig up the earth or gravel on the highway, to build or repair their road. No damages can be assessed for the public, for the taking or use of the highway. If the company acquires any right within the limits of the four rods in width in the highway, marked on the plan as in the limits of its location, beyond that space actually occupied by the rails and road bed, it is only such as is indispensible or necessary to the full enjoyment of their right to lay the track across the road, and to use it beneficially. They acquire, perhaps, no proper easement in the soil, or, if any thing which can be thus denominated, it is qualified and limited to the special purpose of crossing with their rails, and supporting the necessary and sanctioned road bed. It may not be beyond their right to lay a double track across, in ease the whole line is of that character, and required by the necessities or business of the road. But such second rails must, like the first, be laid in one line parallel to the other track, and that line must be in the direction or line of the railway, as before explained.

This brings us to the final and fatal objection, if no other existed, to the proposed curved line of the projected side track on which the work was progressing. The 3d section of the Act of 1853 provides, that “ railroads shall not be carried along” any existing highway, but “must cross the'same in the line of the railway” — unless leave be obtained from the town or city through which the same shall pass.

The proposed curved line is, as before stated, not across the road at all, but along the highway, nearly parallel with the side lines of it. If the company had the right to use the four rods to lay a new track, or side track, in the same manner and to the same extent as on land taken from an individual, the right is clearly and expressly limited- to crossing only in the line of the railw'ay; and any direction along the highway is distinctly prohibited, without consent. No consent is shown, or contended for. We are therefore satisfied that the company could not legally connect the track it was laying down, on Gen. Yeazie’s land, with the road already existing, in the manner and in the line proposed.

The result is, according to the agreement of the parties, the case is to stand for trial, upon the principles, as to the measure of damages, before stated.

Tenney, C. J., and Appleton, Cutting, May and Davis, JJ., concurred.