Boothby v. Androscoggin & Ken. R. R. , 51 Me. 318 ( 1862 )

The opinion of the Court was drawn up by

Walton, J.

This is an action of trespass on the case, and the ground of complaint is that the Androscoggin & ^ Kennebec Railroad Company, in constructing their road, made excavations so near the plaintiff’s land, that, " by the action of the elements and the frost, portions of the soil have from time to time caved in from the top of the slope, until after a number of years it reached the plaintiff’s land, and, since he owned it, portions of his soil have broken off at the summit of said slope, and slid and washed down the side of said slope towards the bank wall at the bottom.” The plaintiff does not charge the defendants with negligence, but admits that the excavations were necessary for the purposes of the road, and that the road was built under and according to their charter. This charter, granted by the Legislature of the State, gave to the defendants express license to make all excavations necessary to the construction of their road; and for parties injured thereby a remedy was provided in the charter or in the general statutes of the State; or, if the damage was so remote or consequential as not to be included in the remedies thus provided, then it was damnum absque injuria, and the parties were without any remedy.

In general, railroad companies are responsible in damages, in an action of tort, for doing what their charter does not authorize, or for improperly doing what it does authorize; but when they have done no more than is authorized by their charter, and that has been done in a skilful and careful manner, for such acts an action of tort cannot be maintained against them,.

It is a principle of the common law that a man must not dig so near the .land of another as thereby to withdraw the natural support of the soil, and render it liable to break away and slide down of its own weight; but this principle does not'apply to excavations made in pursuance of a license; and a license from the Legislature, if within its constitutional limits, affords as ample protection as a license from the injured party.

No ground is perceived on which this action can be maintained. Mason v. K. & P. Railroad Co., 31 Maine, 215; Rogers v. K. & P. Railroad Co., 35 Maine, 319; Whittier v. K. & P. Railroad Co., 38 Maine, 26; Redfield on Railways, 155-158, and authorities there cited; 2 Hilliard on Torts, p. 363, c. 36, and authorities there cited; Morris & Essex Railroad v. Newark, 2 Stock., (N. J.,) 352.

Plaintiff nonsuit.

Appleton, C. J., Rice, Cutting, Davis and Rent, JJ., concurred.