#### Fletcher *vs.*The Auburn and Syracuse Rail Road Company.

An action lies by the owner of land against a *rail road company,*if in the construction of their road *upon ox across a. public highway*they raise an embankment by which the owner of the land is obstructed in passing to and from the road, and his property is otherwise rendered less valuable, notwithstanding the charter of the company authorizes the entry upon and use of such public highway; the *license*relates only to the road, and leaves the company liable to consequential damages sustained by individuals.

Demurrer to pleas. The plaintiff, in his declaration complains that being possessed of a messuage and garden, adjoining a street called Garden street, in the town of *Auburn,*in the county of Cayuga, the defendants caused to be constructed *an embankment of the height of four feet*upon and across Garden street, near his messuage and garden ; by means whereof he cannot have and enjoy his right of free and unobstructed passage unto and upon the street to and from his messuage and garden; and is deprived of the use, benefit and advantage of the street; and besides, his messuage is, by reason of the embankment, frequently inundated “with water, insomuch that he is often deprived of the use and benefit of his cellar, and the cellar wall or basement of the [ *463 ] messuage is injured and impaired by reason of being flooded, and the messuage and garden are greatly depreciated in value: claiming damages to the amount of $3000. The defendants plead 1. *non cul.;*2. that by the act of the legislature incorporating them as a rail-road company, passed the first day of May, 1834, they were authorized, whenever it should be necessary for the construction of their rail-road to intersect or cross any road or highway between the vilages of *Auburn*and *Syracuse,*to construct their rail-road across or upon the same; but that they should *restore the road or highway thus intersected to its former state, or in a sufficient manner not to have impaired its usefulness.*They then aver that it became necessary, in the construction of their rail-road, to intersect and cross the road or highway called Garden street, and they accordingly constructed the same, and restored the road or highway to its former state, or in a sufficient manner not to have impaired its usefulness, which is the same grievance, &c.; 3. that by an act of the legislature entitled,. “ An act to enlarge the *354powers of commissioners of highways, ” passed the eleventh day of May, 1835, it is enacted, that whenever any association or individual shall construct a rail-road upon land purchased for that purpose, on a route which shall cross any road, or other public highway, it shall be lawful for the commissioners of highways having the supervision thereof, to give a written consent that such rail-road may be constructed *across,*or *on\*such road,, or other public highway, and thereafter such association or individual shall be authorized to construct and use such rail-road *across,*or *on*such road or other highway as the commissioners shall have permitted; but any public highway thus intersected or crossed by a rail-road, *shall he so restored to its former state as not to have impaired its usefulness.*The defendants then aver that they have constructed a rail-road, the route of which crosses a public highway in the village of Auburn, called Garden road, or street, (the same mentioned in the plaintiff’s declaration,) that the commissioners o highways having the supervision of such road gave a written con- [ *464 ] sent that the rail-road of the ^defendants might be constructed on it; and the defendants accordingly constructed their rail-road on the same; and that the said road or highway has been so restored to its former state as not to have impaired its usefulness, which is the same grievance, &c. To the two last pleas the plaintiff demurred.

*M. T. Reynolds,*for the plaintiff.

*H. H. Martin,*for the defendants.

*By the Court,*

Nelson, C. J.

It is quite obvious, from the language of the charter of the defendants, and of the act of 1835, *Statutes of*1834, *p.*410, and of 1835, *p.*340, that the power conferred upon the company to enter upon and occupy a public highway, in laying the track of their road, relates only to the public property in the road ; to the public use and enjoyment of it, without intending to interfere with any private or individual interests that might be concerned. Hence the legislature guard only against any obstruction of the common use. The *road*is to be restored to its former state, or in a manner not to impair its usefulness ; that is, in such manner that the public may continue to enjoy it as before.

The statutes effectually protect the company, if they comply with the conditions, from an indictment, or against any interference with their works as a public nuisance, on account of their occupation of the highway; but not against claims for private damages, arising from consequential injuries to adjacent owners. Provision for such injuries was not made, because no authority was conferred to commit them. The company may occupy the road, but they must occupy it at their peril, in a way not to prejudice private rights.

*355Even if upon a fair construction of the grant, the power conferred is broad enough to protect the company against all the consequential injuries to private interests, and was so intended by the legislature, it would be impossible to uphold, it to this extent, where no provision has been made for full compensation. It would be in violation of the fundamental law of the land, as repeatedly declared in this court, and in the court for the correction of errors. 18 *Wendell,*1.

*As the pleas constitute no defence to the cause of action set [*465 ] forth in the declaration, the plaintiff is entitled to judgment.

Judgment for plaintiff.