The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1870-12-10
4 Comm reiai street Case.

A case Matthews and al. '. Kelsey,) OF special
interest to cur citizens, involving the manner OF
using Commercial street has just been decided
by the Law Court. The plaintiffs were rnload-
ing during the time allowed by the City ordi-
nance, from car standing on the railroad track
in front of their store on Commercial street,
load of flour by the use of skids extending from
the car to the store Of course travel on the
street between the car and the store was inter-
rupted, but by crossing the railroad track teams
could readily rass along. The defendant,
truckman, Qor the purpose of testing the ques-
tion,) threw down the skids, and the plaintiffs
brought this action and their right to use the
street in tie manner they were, is sustained by
the Court. We copy the opinion which was
drawn by Judge Danforth:
DANFoRTH, J.-It is undoubtedly true that the
location of railroad within the limis of high
way, would give the corporation using it only
the rights of transit such are necessarily con-
nected Herewith incidental thereto. This
would not include the right to build permanent
structures, which would interfere with public
travel But in this case, the Illegally complain
cd OF Is not the erection OF any such structures,
but the temporary stopping or the cars TOR the
purpose Of unloading, and the use of such APP
piiances were found useful and convenient for
that purpose. There was sufficient space of way
left unincumbcred to accommodate the public
travel, and the incumbrance was of but few
mimi les duration. Tbs legal location of the
railroad is not questioned. The corporation
then had the right to carry passengers and freight
in their cars along that way The loading and
unloading would seem to be but q necessary in
cident toethe right of carrying. 1t is true that
railroads ordinarily have depots, as useful and
convenient for this purpose; but no law compels
them to build such appliances, or precludes them
from loading or unloading in other places. The
only limit TO their pleasure or convenience, in
this respect, is a due and reasonable regard to
the rights of others. They would not, of course,
be allowed to infringe upon private property;
but in this case, their car was in the public way
and one in which by law they have the same
right as Others. Their right is one of transit;
and such is the right of the public, and
no more. AS an incident to this right of
transit, the public have right to load and I'M
load such vehicles as they find it convenient to
use. But in this respect each individual is re-
strained by the rights of others. He must do
his work in such a careful and prudent maner as
not to interfere unreasonaby with the conven-
fence of others. Why should not the railroad
corporation have the same right to load and un-
load, doing it in such manner as not unreason-
ably TO interfere with the rights or convenience
of those having occasion to use the way for or
binary purposes of travel, and having regard to
the different vehicles used aud the different means
of prOpelling them2
But this case does not present so much the
rights of the railroad company as those of the
plaintiffs. 1t seems that they were doing bust
ness upon the line of the way and had occasion
for an additional supply of merchandise. This
could be obtained only over the highway in some
kind of carriage, and could be got into the store
only by unloading from the street. While so
doing the carriage must be stationary and often
instruments used to assist. In the mean time the
way must be more or less INSTRUCTED, and the
convenience OF travellers, especially those who
have occasion to pass over the sidewalk, inter-
fered with If the plaintiffs had elected this course
and performed their work in reasonable man.
ncr, no one would have questioned their right
and the passers would have submitted to the
temporary obstruction without murmur. But
instead of this, they procured their goods to be
brought in front of their door by car and there
unloaded. The time of occupying the road by
the latter method was much less than by the
former. There was ample room for the accom-
modatlon of the travel; in fact the obstacle was
much less than would have arisen from the use
of trucks and drays ordinarily employed on such
occasions, and the inconvenience to the defendant
was rather diminished than increased. Under
these circumstances, we no illegality in the
acts of the plaintiffs, and according to the agree
ment of the parties judgment is to be rendered in
their favor for one dollar damages and costs as
provided in the report.