#### Samuel Boothby *versus*Androscoggin & Ken. R. R. Co.

The charters of railroaá companies or the general statutes of the State provide a remedy for the owners of lands over which the road is located for damages, where they are not remote and consequential; but where a company does only what it is authorized to do, and is without fault or negligence, it is not liable for consequential damages.

Statement of facts agreed.

This is an action on the case. It was agreed that the defendants organized and built their railroad under and according to their charter.

In 1847, Nash and Jones owned a lot of land in Lewiston, over which the defendants located their railroad, and thereafter said Nash and Jones conveyed to them, by deed of warranty, the land included in their location, for the purpose of constructing their railroad upon it. The same year, the defendants made an excavation across said lot, on the land conveyed to them by the deed aforesaid, varying in depth from ten to sixteen feet, or thereabouts, as the land was more or less elevated in reference to the level of their railroad track. Said excavation was neither deeper nor wider than was necessary for the' track and road bed of their railroad, and was made for that purpose. The banks on each side of the excavation were made of the usual slope in such cases, and wholly upon the land conveyed to them as aforesaid.

Afterwards, in 1853, the defendants, in order to protect their railroad at this point, and to prevent the earth from washing down upon it, constructed a permanent and substantial bank wall along their track, and distant therefrom from five to seven feet or thereabouts, and wholly upon their own land. Said wall along the land now owned by plaintiff is. from five to six feet in height. Since the building of the said bank wall and making the excavation aforesaid, the defendants have dug no ditches, nor'disturbed the *319soil along the border of the plaintiff’s land between said bank wall and his land.

The said Nash and Jones, after their deed to the defendants aforesaid, and after the said excavation was made, conveyed that portion of said lot east of the railroad to the Lewiston Water Power Company, and from them, through sundry mesne conveyances, the lots described in the declaration came to the plaintiff.

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 been washed down the side of said slope towards said bank wall.

*Stephen .Boothby,*for the plaintiff.

. *J. II. Drummond,*for the defendants.

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 *320State; 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.