Year: 1859

by the motion Of the engines and cars a!
they pass along. This becomes a great
annoyance to passengers at certain Seasons
oil the year, und especially in the dry hoi
weather OF summer TO prevent or RENE.
dy this evil, the railroad companies arc
obliged TO iucure expense. To some ex-
tent doubtless the dust is injurious to the
machinery Of the engines.


The railroad companies have the right
to preserve and promote as far as piacti.
cable, growth Of turf along their road.
bed and Its sides nud upon The adjacent
strips oi land; and an euny by The ad.
joining landowner to cut and carry away
the turf must be held to be a tresspass.


lhr referee, in estimating the damages,
allowed the Plaintiffs to recover for the
value OF the turf so removed. But as
the plaintiffs have remitted the damages
and claim only nominal damages, we need
not inquire as to the respective rights of
| property which the landowner and the
company may have in the soil and her.
oage OF land taken by the plaintiffs under
their charter


ii. The 43d section Of the 25th chap
ter of the Comp. Stat. provides, that if
the parties cannot agree upon the pl4u
manner, or number of farm.crossing, the
same shall be determined by commission.
ers This, by implication, clearly pre-.
cludes both the railroad companies and the
land owners from determining separately
and without the consent of each other,
where, and what, and how many the farm
crossings shall be. They must agree, or
submit the question to the decision OF
commissioners. From the operation Of
this general law the defendant claims to
be exempt BY virtue Of the language en-
poyed in the plaintiffs charter it is claim.
ed. secures to him a right, independent of
all subsequent legislation, to build and use
farm.crossings as in his own judgement he
may think his convenience requires. The
right. as expressed ID the charter, to cross
the railroad with teams or otherwise, is 70
be used ain such manner as not to in.
jure the same" We think the right is to
be used not merely so that the track or
railroad should not be injured but that
larger meaning, more liberal construc.
tion should be put upon this language VIZ
that the right to cross the railroad should
be used 60 as not to injure the proper and
reasonable enjoyment of the road by the
corporation. 1t is obvious that the man.
ner in which such right should be exer.
cised must be settled by the agreement of
both parties, or else be regulated by law.
Hence the subject necessarily becomes a
ut subject of legislation, and neither party
have any vested rights in the matter be.
yond the control Of legislation. The gen.
eral law on this subject was required, both
to settle the conflicting claims between
landowners and the railroad companies,
and to secure more fully the safety of the
public in travelling upon railroads. IF
every landowner could build and use farm
crossings wherever he pleased, the dangers
OF railroad travel would be- alarmin " in.
creased. The question of convenience or
inconvenience to the landowner in using
bis farm. rOssings sinks into insigni6cance
when compared with the question of safety
or danger to all who travel on railroads.
The landowner has no right to build
farm-crossing at any other point than the
one fixed by commissioners, or agreed
upon with the company. He has no right
to cross the track at any other point than
the established crossing.


In this case many of the acts done bv
the defendant, and necessarily done in or.
der to exercise what be deemed his rights
added materially to the risks and periIs
attendant upon the use of the road. He
filed the ditch along the sides of the road
bed, thus damming the water and satura.
ting the embaukment upon which the track
is laid, and impairipg the solidity and
permaneucy Of the road-bed. Here the
injury may have been inconsiderable; at
other places, in other coils and at certain
seasons Of the year, as in spring and fall,
it might produce serious mischief.


He laid planks between tho rails with.
out fastening; he entered upon the strip
of land at the side of the track with oxen
he crossed the track with his teams at
other places than the regular farm.cros.
sing; he removed length of the fence
on each side of the track. Each and all
these acts made it less safe for the plain.
fiffs to run their trains upon the road