Costello v. Railway , 70 N.H. 403 ( 1900 )

The plaintiff, as tenant by curtesy, possessed and was entitled to enjoy the right to use farm crossings which were appurtenant to the premises so held by him. If those rights were infringed, the plaintiff's life interest was sufficient to enable him to maintain any appropriate remedy in law or equity to redress the wrong, independent of the owners of the fee.

The plaintiff could acquire no right to or in the crossing by prescription. The statute providing that no title can be acquired by adverse possession by or against a railroad prevents the acquisition of any rights in that manner. P. S., c. 157, s. 15.

At the time of the construction of the defendants' railroad and since, the statute imposed upon railroad corporations the duty to provide suitable crossings for the accommodation of landowners in accordance with the agreement of the parties, or, if unable to agree upon the place, number, or kind of such crossings, then in accordance with the determination of some tribunal provided for that purpose. Laws 1850, c. 953, s. 5; C.S., c. 150, s. 45; G.S., c. 147, ss. 1, 16; G.L., c. 161, ss. 1, 16; P.S., c. 159, ss. 1, 19. When the defendants' railroad was constructed, the disputed questions as to the location and construction of crossings were determined by three disinterested justices of the peace. Laws 1850, c. 953, s. 5; C.S., c. 150, s. 45. Subsequently, the power to determine these questions was conferred upon county commissioners (G. S., c. 147, s. 16; G.L., c. 161, s. 16); and later upon the railroad commissioners. Laws 1889, c. 54, s. 1; P.S., c. 159, s. 19.

Under the statute, the plaintiff had the right to a suitable crossing over the defendants' railroad. The length of time the crossing has been maintained by the defendants for the benefit of the owners of the premises, and has been used by them without objection, shows it was legally established, either by the agreement of the parties or by some duly authorized tribunal.

The question of the location of the farm crossing is to be determined by the application of the doctrine of reasonable use. P.S., c. 159, s. 1; Jones v. Seligman, 81 N.Y. 191; Wademan v. Railroad, 51 N.Y. 568; Ellsworth v. Railroad, 34 N.J. Law 94. The convenience of all parties is to be considered in determining this question. Jones v. Seligman, supra. A farm crossing once established is not so located that it can never be changed. The necessity for changes has been recognized and provided for by legislation. P.S., c. 159, ss. 14, 19. The case cited by the plaintiff, to the effect that an established crossing is a fixture and cannot be taken from the landowner, contains the important limitation that this cannot be done "unless it should become necessary to do so for the improvement of the road." March v. Railroad, 19 N.H. 372, 378.

Prospective changes in the original construction were contemplated, and compensation therefor was included in the original award of damages. Dearborn v. Railroad, 24 N.H. 179; Perley v. Railroad, 57 N.H. 212, 214. The case is like a change of highway grade before the law of 1848 (Benden v. Nashua, 17 N.H. 477; Waldron v. Berry, 51 N.H. 136, 143), where no damages could be recovered if the change was reasonably necessary.

The old crossing had become so blocked by the increased business of the road that its further use was unreasonable, and it was the duty of the road to provide another which would be reasonable. This it has done; and while there might be a question of jurisdiction if the facts were in dispute, the agreement of the parties in this case as to the question which the commissioners would upon renders an application to them a useless ceremony. As between these parties, the agreement establishes the fact that under the existing circumstances the new crossing is, and the old one is not, a reasonable and suitable way.

Upon this state of facts no cause for equitable interference is shown, and no damages can be recovered for the time since the new crossing was built. Neither can damages be had for the failure to construct the new crossing prior to the plaintiff's demand for better facilities. Horne v. Railroad, 36 N.H. 440, 444, 445. If the time between the service of notice and the construction of the new crossing was longer than was reasonable for doing the work, the plaintiff is entitled to such damages as he has suffered for the time covered by the unreasonable delay. If there was no such delay, he can recover only nominal damages.

While there was occasion to change the location of the crossing, the change should have been made in the method prescribed by statute. Neither party can separately undertake to determine the question of location (Connecticut etc. R. R. v. Holton, 32 Vt. 43; Wademan v. Railroad,51 N.Y. 568), and for this infringement of right the plaintiff is entitled to nominal damages.

Case discharged.

All concurred.