Hills v. Boston & Maine Railroad

Parker, C. J.

It has not been objected that this action should have been trespass.

In an action on the case, for an injury done to the plaintiffs’ land, it is not necessary to plead specially.

The defendants should have been allowed to show a license. If permission was granted, no wrong was done. A fortiori, they should have been permitted to show that they acted at the request and by the direction of the plaintiffs; in effect that the plaintiffs themselves did the acts complained of, through the defendants acting as their servants. The verdict must, therefore, be set aside.

But we are of opinion that the ruling respecting the deed was right. The clause in the deed imposed upon *182the defendants the duty of making a culvert or passway for cattle under their road. They were to make it a convenient way, so far as they might do by acts done upon the land granted. If they did not do that, they would be liable.

If they unnecessarily laid the grade of their road so low as to make it necessary to dig in order to make the passway, and it was thereby rendered useless, because it filled with water, and if the defendants could not drain it by a ditch on their own ground, they might be liable if they could have made a good passage way by elevating the road to a proper.grade. So, also, if the grade was a proper one, and they might have drained the place by a ditch on the land granted. The plaintiffs reserved no right to enter upon the land granted, to make the way convenient, and it may well be held that thus far the defendants assumed this duty.

But the defendants, by means of the deed, gained no right to dig ditches on the plaintiffs’ land, for their own benefit, and assumed no such duty of digging them for the benefit of the plaintiffs.

Supposing the grade of the road to be a proper one, when the defendants had made a passage way under their road, and had done, upon their land, all they could do to make it convenient, their duty in the premises was performed. If the plaintiffs’ land was so situated that their cattle could not use the way until measures were taken, by digging upon their land, to drain it, the plaintiffs had full power to do what was needful, and were entitled to judge whether they would make the necessary ditches, or would forego the benefit of the way.

As the clause in the deed imposed no duty upon the defendants to enter upon the plaintiffs’ land, it conferred no right to enter.

New trial granted.