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Wilson, 44

IV. Damages—(See INJUNCTION).-The remedy for a violation of the right of support is in most cases an action for damages, injunction being granted only in case serious injury is imminent.

In case of injury to structures which have acquired the right of support, the general rules as to the measure of damages apply. Where injury follows the removal of the support of the natural soil, the measure of damages is the diminution in value of the lot by reason of the loss of support, and not what it will cost to restore the land to its original condition.2 when intending to excavate more than jury is justified in concluding that there . ten feet in depth, to support any wall was a direct connection between the inon adjoining land standing near the juries to the wall and the act of excava boundary line, 'it afforded the necessary tion. Bernheimer v. Kilpatrick, 6 N. licence io enter on the adjoining land, Y. S. Rep. 838. See also City of and not otherwise,' does not require the Quincy v. Jones, 76 III. 231; s. c., 20 owner of the adjoining land to tender a Am. Rep. 243; Tunstall v. Christian, licence in order to receive the benefit of 8o Va. T; S. c., 56 Am. Rep. 581; the statute; but it is encumbent upon O'Connor v. Pittsburgh, 18 Pa. St. 187; the party 'causing the excavation to be Jones v. Wagner, 66 Pa. St. 429; O'Neil made' to request permission to enter v. Haskins, 8 Bush (Kr.) 650; Shrieve and proceed with the excavation with- v. Stokes, 8 B. Mon. (Kr.) 453; Shafer out supporting the wall; and if he fails

Md. 268; Foley v. so to do he is liable for the damages." Wyeth, 2 Allen (Mass.) 131; Gilmore Dorrity v. Rapp, 72 N. Y. 307.

v. Driscoll, 122 Mass, 299; Smith v. Laws N. Y. 1882, ch. 410, § 474, Hardesty, 31 Mo. 411; Bushy v. Holtprovides that “whenever excavations haus, 46 Mo. 161; Panton vi Holland, for building or other purposes, on any 17 Johns. (N. Y.) 92; Eno v. Del lot or piece of land in the city and Vecchio, 4 Duer (N. Y.) 66; S.C., 6 Duer county of New York, shall be intended 17; Radcliff's Ex. v. Mayor etc. of to be carried to the depth of more than Brooklyn, 4 N. Y. 195; Partridge 7. ten feet below the curb, and there shall Gilbert, 15 N. Y. 601; Austin v. Hudbe any party or other wall wholly or son River R. Co., 25 N. Y. 334; Beard partly on adjoining land, and standing v. Murphy. 37 Vt. 99; Stevenson v. upon or near the boundary lines of Wallace, 27 Gratt. (Va.) 77; Aston v. such lot, the person causing such exca- Nolan, 63 Cal. 269; Smith v. Hardesty; vations to be made, if afforded the 31 Mo. 411; Trower v. Chadwick, 3 necessary licence to enter on the adjoin- Bing. N. Car.) 334; s. C., 4 Bing. (N. ing land, and not otherwise, shall at all Car.) 1; McMillen v. Watt, 27 Ohio times from the commencement until the 306; Bibby 7'. Carter, 3 H. & N. 153; s. completion of such excavations, at his C., 28 L. J. Ex. 182; Peyton v. London, own expense, preserve such wall from 9 Barn. & C. 725; 4 Mann. & Ry. 625; injury, and so support the same by a Walters 1. Pfeil, i Mood. & M. 362; proper foundation that it shall remain Massey 7'. Govder, 4 Car. & P. 161; as stable as before the excavations were Partridge v. Scott, 3 Mee. & W. 220; commenced.” It appeared that defend- Brown 2'. Windsor, i Crompt. & J. 20; ant made an excavation more than ten Hide z'. Thornborough, 2 Car. & Kir. 250. feet deep on his lot adjoining the build- “The fact that the defendant was not ing of plaintiff, and provided no sup- the owner of the adjoining land affords port for plaintiff's wall after completion him no exemption. It was never conof the excavation. Held, that the duty sidered necessary, in an action of this of preserving plaintiff's wall from injury kind, to allege that the defendant did not cease with the completion of owned or occupied the land on which the excavation, as he was required to so the digging was done that injured the support it that it would "remain as sta- plaintiff's soil.” Gilmore v. Driscoll, ble as before.” Where the testimony 122 Mass. 199. shows that a wall stood a number of 1. McMaugh 7'. Burke, 12 R. I, 499; years without settling, and that when a Trowbridge v. True, 52 Conn. 190; s. deep excavation was made beside it C., 52 Am. Rep. 579. cracks appeared, and it settled per- 2. McGuire v. Grant, i Dutch. (N. ceptibly towards the excavation, the J.) 356; White v. Dresser, 135 Mass. 150. LATERAL OR BRANCH RAILROADS.

I. Definition, 940.
II. Lateral Roads Generally, 940.
III. Spurs

to Private Establish-
ments, 942.
IV. Switches and Sidings, 945.

V. Carriers, 947.
VI. Negligence in Operating, 948.
VII. Mortgages, 948.
VIII. Taxation, 948.

I. Definition.—A lateral railroad is one which proceeds from 50.ne point on the main trunk, and is but another name for a branch road, both being a part of the main road."

II. Lateral Roads Generally.–The right to construct lateral railroads inay be said generally to depend upon charter or statutory: provisions. Unless the power to build them is conferred upon a company by its charter, either in express terms or by necessary implication, they cannot be constructed.2 But where the charter

Ill. 272.

1. Newhall v. Galena etc. R. Co., 14 from the main road to its depot build

ings, whenever they become necessary The definition of a branch railroad in the proper management and operacan depend neither upon its length nor tion of the road. Toledo etc. R. Co. *'. its direction. The word " branch" in Daniels, 16 Ohio St. 390. such connection is equivalant to “sec- In McAboy v. Pittsburgh & C.R. Co., tion" or "subdivision," and is as appli- 107 Pa. St. 548; 20 Am. & Eng. R. Cas. cable to a direct extension from the 314, it was held that under an act conterminus as to an offshoot of the main ferring authority on the Pittsburgh & road. McAboy V. Pittsburgh etc. R. Connellsville R. Co. to build branches Co. 107 Pa. Št. 548; 20 Am. & Eng. from its main line of railroad, that R. Cas. 314. See also West. Pennsyl- company has the right to extend its vania R. Co's Appea!, 29 Pitts. Leg: J. road in a direct line from its terminus 273

in the city of Pittsburgh, along and 2. Morris & E. R. Co. 7. Central R. over Water street on the Monongahela of N. J., 2 Vroom (N. J.) 205; New wharf to Smithfield street in said city. Orleans etc. R. Co. v. Second Munici- See also West Pa. R. Co.'s Appeal, 29 pality etc., i La. An. 128; Knight v. Pitts. Leg. J. 273, construing similar act Carrollton R. Co., 9 La. An. 284; with same result. Baltimore & H. T. Co. v. Union R. Co., By defendant's charter, its terminus 35 Md. 224; Pittsburgh v. Pennsylvania in Brooklyn was “at or near Atlantic R. Co., 48 Pa. St. 355.

avenue,” its line, as shown upon the Under the Missouri Union Depot map and survey filed, stopped twelve act, encouraging all railroads running feet south of the south line of the aveto St. Louis to center at the Union depot, nue. It acquired the right to run its a company whose road runs near that cars upon the tracks of L. I. Co., city has a right to construct a branch whose road was constructed along the road to the depot, where it is by its center of the avenue, and tracks were charter authorized to construct lateral constructed by the L. I. Co. connecting railroads. Missouri v. St. Louis etc. R. those of the two roads; similar curved Co., 3 Mo. App. 130. And a company tracks had long been lised by the L. I. having power to construct a branch road Co. to reach its depot south of the avemay, under that power, construct a nue and for other purposes. The L. I. branch, commencing near one of the Co. by its charter had the right to build termini and running in the same gen- such appendages as it deemed neceseral direction as the main line, so as sary, and branches, when land practically to form an extension thereof. offered without expense. lleld, that Atlantic & Pac. R. Co. v. St. Louis, 66 by dfendant's charter its terminus Mo. 228.

was not necessarily south of the areUnder the Ohio General Incorpora- nue, and there was nothing therein to tion act of 1852, it has been held that prevent it from making such terminus a railroad company has power to con- in the center thereof where it could condemn land for new side tracks, leading nect with the other road; that the con

was

confers a right to build branch roads, the presumption follows that the company has the same right to condemn lands whereon to construct such roads, as in the case of the main line.1

necting tracks were authorized by the charter. Baltimore etc. Co. v. Union charters of the two companies, and the R. Co., 35 Md. 224. provision of the act of 1850 (§ 28, subd. Limitation As to Time.-A limitation 6), authorizing railroad companies to in the criginal charter as to the time connect their roads, and in no respect within which the road must be finished could they be considered as a separate does not apply to branch roads, at least and independent line, and so requiring where the right of way to build branch all the steps necessary to

a newly roads has been acquired prior to the organized street railway. People v. expiration of the period mentioned in Brooklyn etc. R. Co., 89 N. Y. 75; 9 the charter. Atlantic & Pacific R. Co. Am. & Eng. R. Cas. 454.

v. St. Louis, 66 Mo. 228. A railroad company, authorized by Where no limit is fixed in the charits charter to construct a road from an ter to the time within which branch incorporated city to another point, ac- roads may be constructed, the courts cepted an ordinance passed by the will not, as a rule, fix any limit; and councils of said city, granting it a right where, by an act of the legislature, the of way up to a certain point therein. time for completing the main road has It then built its track up to that point, been extended, the provision will be and established there its freight and held to apply also to the case of lateral passenger depots. There was no other railroads: Newhall v. Galena & Chiact upon its part indicating an inten- cago Union R. Co., 14 Ill. 273. tion to fix the terminus at that point. A feeble railroad, of doubtful ability Held, that the power reposed in the to construct any road between the tercompany to locate and establish a minal points of its charter, will be reterminus had not been exhausted, and strained, at the suit of a municipality that it might, with the consent of the which has subscribed to it, from wastcity councils, subsequently extend its ing its means in the construction of line to a point beyond that where its branch roads; and where said subscripdepots were situate; and independently tions were conditioned upon the road of the question whether the company running through the town, and the conhad fixed its terminus, the construction struction of the branch is substantially of the new track, above referred to, was an evasion of that condition, and a difully authorized by the act of April 4th, version of the road from the munici. 1863, ý 9 (P. L. 62), enabling railroads pality, the company will be restrained 10 construct such branches from their on that ground from building it. Plattemain lines as they may deem necessary ville v. Galena & S. W.R. Co., 43 Wis. to increase their business and accom- 493 inodate the public. Western Pennsyl- Purchase of Branch Road.-A statute vania R. Co.'s Appeal, 99 Pa. St. 155; authorizing a company to locate, con4 Am. & Eng. R. Cas. 191.

struct and operate a branch road does But where a railroad company is not confer power to purchase a line alauthorized by its charter “to construct ready constructed. Gulf etc. R. Co. 7'. branch roads from the main route to Morriss, 67 Tex. 692; 35 Am. & Eng. other towns or places in the several R. Cas. 94; Campbell z'. Marietta & C. counties through which the road might R. Co., 23 Ohio St 168. pass," it is limited to the construction A reservation in the charter of a of branch roads which leave the main railroad corporation, of a right to auroute and terminate in the same coun- thorize other railroad corporations 10 ty. It cannot extend such branches enter upon and use this railroad, exinto another county. Works 2'. Junc- tends to a branch road purchased from tion R. Co., 5 McL. (U. S ) 425. And another corporation, whose charter cona provision in charter that all railroad tained no such reservation. Lexington companies shall have the right to run & W.C. R. Co. 7. Fitchburg R. Co., upon equal terms over the track of the 14 Gray (Mass.) 267. company in question, does not author- 1. Newhall v. Galena etc. R. Co., 14 ize the construction of a branch to en- Ill. 273; Toledo etc. R. Co. 7. East able a certain other railroad company Saginaw etc. R. Co. (Mich. 1888), 36 . to enjoy the privilege granted by the Am. & Eng. R. Cas. 553.

The necessity for such branches, and their direction, rest in the will and discretion of the president and directors of the corporation by which they are to be constructed.1

III. Spurs to Private Establishments.—The right of a railroad company to run private sidings or spurs to private establishments, and to take the necessary land for the purpose, is clearly within the constitutional power of the legislature to confer, because the public interest is thereby subserved by reason of the increased facilities afforded for developing the resources of the State, and promoting the general wealth and prosperity of the community.2

not

use.

Where a railroad company has power thorized. The width of such a road is to build an additional lateral road, aux- a jurisdictional fact, and may be taken iliary to the original road, whose con- advantage of at any stage of the prostruction and maintenance is possible ceedings. In re Shoenberger, un Pa. only upon an independent right of way, 95; 25 Am. & Eng. R. Cas. 177. the statute does not prevent the con- 2. Getz's Appeal, 65 Pa. St. 1; 3 Am. & demnation of land for such additional Eng. R. Cas. 186. In this case the court road. Lower v. Chicago etc. R. Co., said: “We cannot assent to the opposite 59 Iowa 563; 10 Am. & Eng. R. Cas. contention, which holds that a side-track, 17

which leads only to a manufacturing or Section 16 of chapter 151 of act of mining establishment held in private 1851-2, old Code of Tennessee, 1119, ownership is illegal, because it was intended as a general amendment does subserve a public to the charters of all railroad compa- These establishments are very numernies that might see proper to accept its ous, especially in Pennsylvania, along a provisions by exercising the rights and near line of railroad. They serve to privileges conferred by it, and under it develop the resources of the State, they a railroad company authorized by its give employment to vast numbers of charter to condemn land for right of citizens, and constitute a most imporway, may condemn land to build a track tant element in the general wealth and connecting or uniting it with another prosperity of the community. Convenrailroad; and if it appropriates land for ience and consequent cheapness of such purpose without having same con- transportation are in most cases essendemned, it is not liable as a trespasser, tial, and, in many, vital to their mainbut for its value and incidental dam- tenance. Moreover, considerable porages, under the statute providing for tions of the general public are directly the measure of damages in case of con- interested in the traffic which goes to demnation proceedings. Louisville etc. them, and in that which comes from R. Co. v. Quinn, 14 Lea (Tenn.) 65; 22 them. Hence in the connection in which Am. & Eng. R. Cas. 111.

we are now considering them, we cannot 1. McAboy v. Pittsburgh etc. R. regard them as merely private interests, Co., 107 Pa. St. 548; 20 Am. & Eng. R. and therefore without the pale of that Cas. 314; Pittsburgh r'. Pennsylvania public use, for which private property R. Co., 12 Wr. (Pa.) 359.

may be taken in the construction of railWidth of Land Taken.—The Pennsyl- roads lawfully established and actually vania acts of 1832 and of 1865 on the used for public purposes." See also subject of lateral roads, limit the width Knickerbocker Ice Co. v. Philadelphia of such roads to twenty feet. If, under & R. R. Co., 38 Leg. Int. (Pa.) 384; the latter act, a greater width is neces- Slocum’s Appeal, 12 W. N. C. (Pa.) sary for sidings, wharves, chutes, etc., 84; Hays v. Risher, 32 Pa. St. 169. such widths may be used for those spe- Lewis, in his work on Eminent Docific purposes. In that event the spe- main, 171, says with reference to the cial additional structures, together with position of the Pennsylvania court: the quantity of ground requisite for the "Certain decisions in Pennsylvania have purpose, should be carefully described sometimes been understood as laying in the petition and order, so that they down the doctrine that private property may appear on the record. No infer- could be taken for a lateral railroad ence of additional width can be drawn connecting a mine or a mill with a railfrom the fact that double tracks are au- road, canal or navigable stream, though

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But where the legislature has conferred no such authority, although the company's articles of incorporation place no limitation upon its power to build side tracks, turnouts, etc., yet it is

the lateral road was for the private use one; and to establish this they adduce of the owner of the mine or mill. Har- the purpose of the corporators. But I vey v. Thomas, 10 Watts (Pa.) 63 think these purposes are foreign to the Harvey v. Lloyd, 3 Pa. 331; Shoen- enquiry. The character of the road in berger v. Mulhollan, 8 Pa. 134; Hays v. this respect is dependent, not on the Risher, 32 Pa. 169. The supreme designs of its projectors, but on the court of that State seems to have so un- terms of the law which governs it. Said derstood itself at an early date. Har- JUDGE BALDWIN, in Bonaparte v. vey v. Thomas, 10 Watts (Pa.) 631. Railroad Co., Baldw. 205: 'A road or But afterwards discovered its mistake. canal constructed by the public or a Ilays v. Risher, 32 Pa. St. 169." And corporation is a public highway for the see New Central Coal Co. v. Georges public benefit if the public have a Creek C. & I. Co., 37 Md. 537.

right of passage thereon by paying a In Phillips v. Watson, 63 Iowa 28, reasonable, stipulated, uniform toll.' it is held that a road or way established Tested by this criterion, and it is the under ch. 34, Iowa Laws of 1874, over true one, there can be no doubt that the land of another, to connect a mine every railroad built by corporation oror quarry with a railroad or highway, ganized under our general law becomes is a public way, in the sense that the ipso facto a public road.” public may use and enjoy it in the way In the case of Pittsburgh etc. R. Co. in which roads and highways are ordina- v. Benwood Iron Works (W. Va.), 36 rily used by it, and that the mine owner Am. & Eng. R. Cas. 531, however, who procures it to be established, must a railroad company sought to condemn use the special privilege which the act land for a side track to a certain steel confers on him in such manner as not mill. The statutes of West Virginia to destroy this right of the public, or bearing upon the right, authorized the prevent its enjoyment. It follows, company “to extend its road from the therefore, that said act is not in conflict city of Wheeling in the direction of the with those provisions of the constitu- Kentucky State line, through such section of the United States and of the tions of the State contiguous to the State of Iowa, which prohibit the ap- Ohio river as the company may deem propriation by law of private property most desirable.” A statute also proto private use.

vided that “the president and directors Dietrich v. Murdock, 42 Mo. 279, up- of any company incorporated to conholds the validity of a Missouri statute struct a railroad, or other work of inauthorizing the construction of a rail- ternal improvement, may cause to be road from certain coal lands to another made, in connection therewith, branch railroad. It was decided in this case railroads, or lateral works, not exceedthat where, by the terms of a statute, a ing two miles in length; and railroad company are incorporated for may cause to be made branch railroads the use and benefit of that particular or lateral works, not exceeding ten · section of the State where the road is miles in length.” Another statute prolocated, it will be assumed that the vided that "any railroad company orgrant of authority to condemn the land ganized under this chapter may build necessary for a road bed was a rightful and construct lateral and branch roads exercise of legislative authority.

or tramways, and of any gauge whatThe laying of an underground railroad ever, exceeding fifty miles in from a coal mine to a railway, under length.” The court held that the use the New Jersey act, was sustained in to which the land was to be subjected Hibernia Underground R. Co. v. De- was a private, not a “public use," and Camp, 47 N. J. L. 518; 24 Am. & Eng. it could not therefore be taken. “We R. Cas. 273

would do nothing," said the court, "to In National Docks R. Co. v. Central hinder the development of the State, R. Co., 32 N. J. Eq. 755. Dixon, J., nor to cripple railroad companies in assaid: “But it is insisted by the com- sisting such development, but at the plainants that the road which the Na- same time we must protect the prop

tional Docks R. Co. intends to con- erty rights of the citizens. All that to : struct will be a private and not a public which the corporations are entitled un

not

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