The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1897-02-18
SUPREME JUDICIAL COURT

The following rescript was sent down
from the law court yesterday:
Washington, SIS:
Matilda NJ. Lesuer VS.. Calais Street Rail
way Company.
Rescript, Strout, J.-Plaintif was the
owner of land with buildings thereon on
North street in the city of Calais, the title
extending to the centre of the street. De-
PENDANT was authorized by it's charter to
lay it's electric railway upon or along
such streets in the city of Cnlais as the
city council of said Calais may permit.
The tracks were to be laid in such
should direct. 1t WIS required to build
it's road $50 as not to interfere with the
grade of any street. and to conform
to any change of street grade when re-
ouested by the city council. And the
company was made lila BILE for all dam
ages to persons and property caused by
its failure to conform to the existing
grade or to the grade at any time mere
after esta blished, of any street on which
its tracks may be laid. The rails
shall not be laid over one inch above the
level of the street, Chapter, G, $40 OF
the special laws Of 1893. The city grant
ed permission to the defendant to lay its
tracks through certain streets, of which
North street was one, .ths exact location
of the tracks to be
hereafter determined by the mayor,
rond commissioner and committee of the
city council on streets. - On North
street and passing plaintiffs property,
the mayor, road commissioner and oom-
mittee on streets directed defendant 10
lay it's tracks within the located way.
but outside the travelled part and on the
side next plaintiffs premises. 1t ap-
pears that these officers then contemplat.
5rs. he 10 n Efraaf7 al
this point, and in that view directed de-
PENDANT to elevate It's track about two
feet above the level of the travelled way,
where defendants road crossed plain
tiff's property, which WAS done by defen-
dant, causing injury to plaintiff in OBJ.
tanning egress and ingress to and from
her property. For the injury this suit
tracks were laid, there had been no grade
of North street established by tke city
council, but the street was an old one,
having an existing grade in faot, which
had not been materially changed for
many years. other than the slight chan
ges caused by repairs and by macada-
MIXING the street n few years previously,
and has not since been ra1sed to conform
to the railroad track. The city council
have not made any change IL the then
existing grade. The power to do this
rested in the city council alone. Neither
the mayor, road commissioner or COM
mittee on streets, or all combined, had
authority to change the grade. The de-
PENDANT acted under its charter supple
mented by the consent of Calais. 1t WAS
not authorized to change the grade OF
the street. In elsyat nR Its track above
the street grade it exceeded its chartered
rights and became liable as trespasse1
to any one injured thereby. The direct
ion of officers or agents OF the city to do
what was done, affords no justification,
because the persons SO directing were
without authority to change the grade.
The track remained as built for about
four months and was then lowered about
thirteen inches. end for aught that APP
pears is not now objected to. But for the
damage suffered By plaintiff from the
original buildings unauthorized grade,
and its continuance, the plaintiff is
entitled to recover.
Judgment for plaintiff. Damages to
DO assessed at nisi prius.