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into a turnpike road. The public cannot use the railroad with their own vehicles on paying toll. On a discontinuance of the highway, the land reverts to the former owner; but a discontinuance of a highway on which there is a railroad would leave the railroad there. For such an occupation there should be additional damages to the adjoining owners. The consent of the owner to a highway which benefits his land and renders access to it easy does not extend to an occupation by a railroad, which makes access both difficult and dangerous, and which depreciates the value of his land. A railroad is an additional burden on a turnpike, especially when such portion is used for depot or platform purposes. This burden is not only additional to the turnpike company, but to the adjoining owners, and the turnpike company cannot convey their road to a railroad company so as to cut out the rights of the adjoining owner; for the change of the turnpike to a railroad operates as an abandonment of the turnpike to a different use, thereby allowing a reversion to the owner, who may recover damages in trespass. A town which has paid damages for the establishment of a public highway may also recover damages for the expense necessary in establishing and maintaining a new road. This doctrine would not apply to necessary crossings, but to permanent occupations of sections of
1 Imlay v. Union Branch R. R., 26 Conn. 249; Wager v. Troy Union R. R., 25 N. Y. 526; Williams v. New York Central R. R., 16 N. Y. 97; Trustees v. Auburn R. R., 3 Hill, 567; Starr v. Camden R. R., 24 N. J. L. 592; Troy v. Cheshire R. R., 23 N. H. 83; South Carolina R. R. v. Steiner, 44 Ga. 546.
2 Williams v. New York Central R. R., 16 N. Y. 97; Mahon v. New York Central R. R., 24 N. Y. 658; Davis v. Mayor of New York, 14 N. Y. 506; Craig v. Rochester R. R., 39 Barb. 494; Kucheman v. C. C. & D. R. R., 46 Iowa, 366.
3 Seneca Rd. Co. v. Auburn R. R., 5 Hill, 170; Mahon v. Utica R. R., Lalor, 156; Ellicottville Rd. v. Buffalo R. R., 20 Barb. 644; Kenton County Court v. Turnpike Co., 10 Bush, 529.
* Higbee v. Camden R. R., 19 N. J. Eq. 276.
roads. In Pennsylvania ? and Iowa? no compensation is provided, as the use is considered a proper modification of an existing use. The construction of a railroad on the site of a canal is not an additional burden, unless it destroys certain easements which are inconsistent with the changed use,' or renders the access to the land more difficult by cuts and embankments. The construction of a railroad across a right of flowage, or on a levee or landing,' is an additional burden.
§ 33. Highway an additional burden on a railroad. The laying of a highway across a railroad-track is considered an additional burden in those states where the law imposes upon the railroad company the additional expense of erecting and maintaining signs at the crossings, of erecting and maintaining cattle-guards, and of flooring the crossings and keeping the planks in repair. These expenses,
· The Commonwealth v. Erie R. R., 27 Pa. 339; Cleveland R. R. v. Speer, 56 Pa. 325.
? Gear v. Railroad, 39 Iowa, 23. But see Kucheman v. C. C. & D. R. R., 46 Iowa, 366, where the owner has the fee in the street.
• Chase v. Sutton Mfg. Co., 4 Cush. 152.
6 Hatch v. Cincinnati R. R., 19 Ohio St. 92. In the case of Gordon v. Pennsylvania R. R., 6 Rep. 727 (Pa.), not yet reported in the regular reports, the canal, which was subsequently purchased by a railroad company and adapted to its uses, had carried off the surface-water, which before the construction of the canal had been carried off by a natural channel. The railroad company filled up the canal, and provided no channel for the water in the place of the natural one, or canal, and built a box-sewer under the railroad; and the water, shooting through the sewer at a point where there was no natural channel, formed a pond and overflowed plaintiff's land. The damages were increased by the course taken by the railroad. It was not alleged that in the assessment of damages the absurd, yet possible, act of placing a culvert under the canal to convey water to the land below entered into the consideration of anybody. No jury could anticipate such folly. When the damages were assessed for a canal, no railroad injury therefrom was in contemplation. The railroad company has no right to inflict that injury because of the settlement of all probable damages from the building of the canal.
6 Davidson v. Boston R. R., 3 Cush. 91. " Railroad Co. o. Schurmeir, 7 Wall. 272.
being directly imposed, must be paid for. In New York and Pennsylvania the laying of highways across the tracks of railroads may be done without compensation, and the railroad company may be compelled to make the necessary excavations, embankments, and bridges to safely accommodate the highway. This authority would not include the opening of roads through grounds used for necessary buildings, yards, etc., although it was suggested in Pennsylvania that a street might be opened through depot-grounds, and that the wisdom of such action could not be questioned by the courts.
§ 34. Turnpike not an additional burden on public road. — A change from a highway to a turnpike charging toll is not such an essential change as to require compensation to adjoining owners. When a highway is taken for a turnpike, it does not cease to be a highway, and the land does not revert to the owner. The payment of tolls to the turnpike company is in lieu of payment of taxes to support the road. The change is only a change of mode in sustain
. ing the road, and not a change of use. The same rule has been applied to changes from public roads to plank-roads.? In Williams v. Natural Bridge Plank-Road, the Supreme Court of Missouri consider that a change which will in
i Old Colony R. R. v. Plymouth, 14 Gray, 155; Crossley v. O'Brien, 24 Ind. 325.
» Boston R. R. v. Greenbush, 52 N. Y. 510; Albany R. R. v. Brownell, 24 N. Y. 345; Philadelphia R. R. v. Philadelphia, 9 Phila. 563.
• Albany R. R. v. Brownell, 24 N. Y. 345.
• Boston R. R. v. Greenbush, 52 N. Y. 510; Mohawk R. R. 0. Artcher, 6 Paige, 83.
5 Philadelphia R. R. v. Philadelphia, 9 Phila. 563.
o Benedict v. Goit, 3 Barb. 459; Walker v. Caywood, 31 N. Y. 51; Wright v. Carter, 27 N. J. L. 76; The State v. Laverack, 34 N. J. L. 201; Douglass v. Turnpike Road, 22 Md. 219; Callison v. Hedrick, 15 Gratt, 244; Nolensville Turnpike o. Baker, 4 Humph. 315; Panton Turnpike Co. v. Bishop, 11 Vt. 198. Contra, Cape Girardeau Road v. Renfroe, 58 Mo. 265.
? Walker o. Caywood, 31 N. Y. 51; Chagrin Falls Road v. Cane, 2 Ohio St. 419. 8 21 Mo. 580.
crease the injury and inconvenience resulting to the owner, on account of deep cuts necessary for a plank-road, renders the burden additional, and demands compensation to the owner; but this can hardly be considered sound law, as the public and turnpike companies may make changes in the grades of roads and streets without compensation to owners. The converse of the proposition is also true, that a change from a turnpike to a public road is not a material change, requiring additional compensation.”
§ 35. Ferry-landing additional burden on highway. A public highway is devoted to furnishing a right of passage to the public, and nothing more.
The highway, although abutting on a navigable stream, cannot be used for the purpose of landing goods or passengers; and for such attempt the adjoining owner, or the turnpike company owning the turnpike, may recover damages. The grant of a ferry license does not authorize the use of the land of another as a landing, nor can the landing be on a county road or city street, unless compensation is provided for the additional burden."
§ 36. Preliminary survey not a taking. — An entry may be made on land, to ascertain boundaries for public purposes, without compensation, provided the entry was reasonably necessary, not too long continued, and accompanied with no unnecessary damage. Selectmen may perambulate boundaries or view land prior to laying out a road.5 A sheriff
land to arrest a man. An entry may be authorized for preliminary survey of a public improvement, and no compensation will be due if the
1 Douglass v. Turnpike Road, 22 Md. 219.
2 Peirce v. Somersworth, 10 N. H. 369; The State v. Maine, 27 Conn. 641; Heath v. Barman, 49 Barb. 496; Murray v. Berkshire, 12 Metc. 455.
3 Lexington R. R. v. McMurtry, 3 B. Mon. 616. * Prosser v. Wapello County, 18 Iowa, 327; Haight v. Keokuk, 4 Iowa, 199. 6 Winslow v. Gifford, 6 Cush. 327.
occupation is temporary only, and accompanied with no unnecessary damage. For all wanton and unnecessary acts, those entering would be liable in trespass. A continuance of the entry made for survey, and a construction of an embankment or roadway,' or grading of the same,t will not be justified. After the construction commences, the entry can only be justified by a condemnation. Temporary occupation can only be by legislative sanction. A city council have no authority to grant such privilege without legislative delegation. Property cannot be occupied for a temporary road, to be used during sleighing-time, or while a regular road is being laid out, without compensation. Experimenting with land will not be permitted without compensation paid or secured. An exploration which consists of digging a shaft thirty feet in diameter, which was to be continued to a depth of sixty-five feet, from which a tunnel was to be made under a river, is too extensive an exploration to be called a preliminary survey, when made on land occupied by a railroad.'
1 Walther v. Warner, 25 Mo. 277 ; Polly v. Saratoga R. R., 9 Barb. 449; The State v. Seymour, 35 N. J. L. 47; Steuart v. Mayor, 7 Md. 500.
? Bonaparte v. Camden R. R., Baldw. 205.
5 Hazen v. Boston R. R., 2 Gray, 574; Davis v. San Lorenzo R. R., 47 Cal. 517.
• The People v. Third Avenue R. R., 45 Barb. 63.