The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1859-08-24
Railroads Rights

4 -
road Corporation, Trustees, or other per.
sons owning and running railroad have
no other rights to the soil urchased for
said road, than the yiSH of ,cay and
under this impression many persons plant
potatoes and corn, NOW the grass, and as.
sumo to have the right TO cultivate the
land on each side OF the track for their
own especial benefit. 10 order to correct
this erroneous impression, we give below
the decision of Judge Adds, to which we
invite the attention of our readers
ORANGE Cousry...Is SUP. OouRr, MARCH
TERN, 1859
The Connecticut & Passumpsic Rirer,
R. r. Go, Us. Berkisy Holton.
OPINION OF THE COURT.
Ald,s, J. The action is trespass du.
ch fr.
1t appears that the land upon which
the alleged tresspass was committed, was
originally part of the farm owned by the
defendant; and that it was taken by the
plaintiffs, under their chsrter, and the
damages duly appraised and paid.
The defendant, being the adjoining
lsndholder, claims the right to enter with
his servants. oxen aud cart, through the
plaintiffs fence upon the strip of la d y.
ing between the fence and the railroad
tack and to cut and carry away the turf.
He also claims the right to take up
length of fence on each side Of the road
on his farm, and to make crossing for
his own convenience without the consent
of the plaintiffs or the authority of the
commissioners, at place distant and dit.
ferent from the crossing made by the
plaintiffs aud to use the farm crossing SO
by him made for the convenience of the
work on his farm.
Although the right which railroad
company acquires to land taken under
their charter is said to be merely an ease.
nent, yet the nature of their business,
heir obligations to the community and the
rublic safety require that their possession
{ the land SO taken should be- absolute
md exclusive against the adjoining land
wners. so far as to secure fully every
purpose for which the railroad is made
md used.
The possession Of the railroad company
'annot be limited to any point of occupa.
tion less obsolute and exclusive than this;
hat the corporation may do any acts
lpon the land conducive to those public
Uses for which their charter was granted,
and may exclude the landowners from
taking any possession, or doing any act
upon the land which may in tho least de.
4ree tend to jeopardize the safe transpor.
tation of passengers and freight upon the
road, or which may in any way interfere
with or embarrass their use of the roa
and land for any Of the purposes which
the railroad ia intended to accomplish.
This possession, in Massachusetts, has
been said to be practically exclusive ~
2 Gray, STA. m jackson VS.. the Rut-
land & Burlington R. R. Bo, 25 VT, l59.
though the precise point was not under
consideration. Chief Justice Red6eld says:
The Railroad Company must have the
right at all times to the exclusive occu.
nancy Of the land taken, and to exclude
all concurrent occupancy by the former
owners in any mode and for any purpose" ("
Hence any entrance by the landowner,
or any acts done by him upon the land
VIII ch tends in the least to impair the
structure Of the road, to endanger the
running Of trains, to lessen the safety or
comfort OF passengers, or generally to en-
hsrrnss the use of the road for the pur,
noses for which it was built, or the pow.
er of the railroad to keep it in repair must
he deemed wrongful,
Without stopping to inquire whether a
possible case may not exist where the land
owner might enter to obtain mines or min
erals, or to take berbage or other vegeta'
bic growth, il is obvicns that the possess
lou of the railroad company must ordina'
rily aud practically be absolute aud exclu'
sive.
The removal Of turf from the sides o.