The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1853-07-13
Supreme Court.-Important Cases
desided.

oRA1fAC
desided.
CHITTENDoN Co.-JULY TERM, 1858.
Before Chief Justice Rcdfeld and Judge
lsham.
JOSEPH HATCH, rs. VT. CENTRAL r.
II. Co.-This was an action on the
case for damages to the plaintiffs
house, land and place of business,
caused by the construction of defend
ants railroad in front thereof, through
and across Main and Water streets, in
Burlington, whereby an embankment
was raised in said street, and the ac-
cess to the premises of the plaintiff
rendered less easy and convenient, and
also for such damages as we're occa-
stoned to the plaintiff by the daily run
ming of the cars and engines of the de.
PENDANTS on the same railroad, thereby
affecting the business and trade Of the
plaintiff. The railroad in question did
not pass wei any part of the plaintiffs
land, but through and across the pub
lis highway, the fec in the soil of (which
was not claimed by the plaintiff.
The Court, by Redfeld, Chief JUS
tice, held that, inasmuch as there was
nothing either in the charter of the de-
PENDANTS, or in the general statutes of
the State, which imported a liability
for damages like those claimed in this
case, but the right to recover, given
by the charter, was only for land taken
by the railroad, or for damages to land,
part of which was taken, the injury to
the plaintiff was one for which he had
no redress, being purely consequential,
and damnum absq"e i%njnria. The
Court held that neither by the general
principles of the common law, nor by
any provision of the constitution ofthis
State, we're the defendants liable to
the plaintiff for the damage he had suf-
fered from the prudent exercise of
their lawful business, and hence affirm
ed the judgment of the County Court
in favor of the defendants.
FREDERICK WHITCOMD rs. VT. zen.
r. r. Co.-Casc for so negligcntly
building the railroad of the defendants
across the land of the plaintiff, that a
certain water course thereon was obs
tructed, and the plaintiff land thereby
overhowed and damaged 1t appear
ed that the defendants in constructing
their railroad had erected an cmbank-
ment across the land of the plaintiff,
and for the passage Of the water under
embankment had constructed a wood
en- culvert. which by the testimony az
peared to have been too small and of
insufficient strength,-and after a
short time, was filed up and otherwise
got out of repair that the plaintiffs
land in consequence of the insuficiency
of the %culvert was overlooked and suf-
fered the damages for which this action
is brought. 1t further appeared that
either the plaintiff or a former owner
of the land had received q certain sum
of money from the defendants as land
damages awarded by appraisers, for
that part of the plaintiffs land taken,
and also for such decrease in value as
the land might sustain in consequence
Of the construction of the railroad.
The Court by Chief Justice Red
field held. That the damages, COM
planned OF in this case, were not oi the
consequential nature of those for which
Hatch sued,-not the effect of tn
prudent and lawful use of the defend
ants property, but arose directly out Of
a failure to comply with the rcquisition
of the defendants charter-Sec. 10.
of which provides that all water
courses and streams shall be restored
to their former state and usefulness,
as near as practicable.
This would not impose upon the de-
PENDANTS inpossibilitics as was held in
Queen v. Scots 3 Ad., and Ellis. r.
543. Nor would it probably require
the Defendants to build a c%ulvert where
it is not obvious that one is needed, or
where one would only be needed ono
in twenty or thirty years in the most
extraordinary freshets.
But in the present case it seems
such culvert was necdful, every year,
and that this became known to defend.
ants before constructing this embank-
ment, and that they attempted to build
one, which was so imperfectly built
that it filled up.
Therefore the opinion of the Court
is, that the plaintiff is entitled to have
such damages Of defendants as he has
sustained by reason Of their not build
ing such a c%ulvert as would be ordina-
rily needful in that place. The dam
ages estimated by the appraisers,
and paid by the defendants to the
former owner of the land, present no
impeachment to the plaintiff recovery.
inasmuch as it was not competent for
the appraisers to take into account any
such prospective or possible damage to
accrue from a neglect and breach of
duty on the part Of defendants. Judg-
ment Of County Court reversed and
case remanded.