Adden v. White Mountains Railroad.

the difficulty he might encounter in procuring such a policy, or of the mistakes and misunderstandings that would naturally ensue, it would very likely end in litigation, the railroad on the one hand denying their liability, and the insurance company on the other claiming that the fire originated from the railroad company's engines; and so the owner, in addition to having lost his property by fire, would be placed between two other fires where the result might prove equally disastrous.

By section 10, any insurance effected by the owner inures to the benefit of the railroad company in case of loss occasioned by them, so that the owner receives no advantage from his insurance in case of payment by the railroad company of his damages; and unless the company do pay, he has only been able to procure partial indemnity for his loss by paying an increased premium therefor. This section applies not only to the owner whose land has been taken in the construction of the road, but to any person whose property may be damaged by fire from the company's engines; and there would seem to be equal reason for claiming that no one whose property is located on the line of the road need protect it by insurance because the railroad is made liable in case of loss by fire from its engines, as to claim this in behalf of the owner whose land has been taken by the road in its construction. The danger of loss by fire communicated from the company's engines is only one of the many dangers from that source that threaten the owner's property; but owing to the proximity of the track to his buildings, he cannot protect them from this source of danger except at a price enhanced in consequence of this act of the defendants.

That no evidence was laid before the jury upon the subject of insurance does not alter the aspect of the question. The jury were instructed that no damages on account of increased insurance should be allowed; and the only conclusion we can draw is, that none were allowed on that account. I think the instructions were erroneous upon this point.

The instructions in regard to any peculiar advantage which the plaintiff might acquire from the construction of the road seem to recog nize as a fact, that the facility thereby afforded him for transporting his pine trees to market was in itself an advantage of that peculiar character that would require him to offset such advantage against his damages for the land taken. Giving a land-owner access to his land where he had none before would not ordinarily be considered a benefit for which he should pay, but rather in the light of a general improvement in which many would share. See Carpenter v. Landaff, supra, 224, where BEL Lows, J., remarked: "It is true that there may be cases where a

Adden v. White Mountains Railroad.

single land-owner would be furnished such access where none existed before; but ordinarily it would be otherwise, and the cases would be extremely rare when many were not benefited by improved means of access. Indeed, such a state of things could hardly be expected at all, unless in a case of a private road."

The fact that the road gave the plaintiff access to his trees was not in itself such a peculiar advantage as to require him to submit to a reduction of his damages on that account. It does not appear but what others in the vicinity, whose land was not taken, were benefited in the same manner if not to the same extent. The instructions were not sufficiently explicit upon this point.

For these reasons I think the verdict must be set aside.

CUSHING, C. J. The question is, whether by our law there can be any circumstances which ought to be taken into consideration showing some advantages derived by the proprietor, which ought to be set off against any portion of the damages to which the land-holder would otherwise be entitled. There are certain cases which have been decided in which it has been intimated that such a state of facts might exist, but I do not think that principle has often, if at all, been made the basis of a judgment and a reason for the allowance of such set-off.

All the cases seem to recognize the principle, that no reduction of damages is to be made by reason of any benefit derived to the landholder, belonging to the same class of benefits as are shared in common by all the land-holders in the vicinity. If there be any case for such set-off, it must be an exceptional one.

Now, it seems to me that if there be any class of benefits which is emphatically shared by all, it is that class which has its origin in increased facilities for transportation. One man is enabled to get his pine timber to market, another opens his granite quarry, a third may have a large grass farm, and finds increased facility for taking his pressed hay to market. These facilities are greater or less in proportion to the proximity of the land to the railroad or the station, but they all belong to the same class. They all belong to the class of general benefits, which is open to all and shared alike by all.

I think, therefore, that the charge, in recognizing, as I think it does, that the fact of the pine timber existing on the line of railroad is exceptional and the benefits derived from it peculiar, was erroneous. It is true that in the end it would be a question of fact whether or not, under the existing circumstances, there was an exceptional benefit. But I think that lot of pine timber, standing near the track, was in itself no

Adden v. White Mountains Railroad.

more exceptional than a turnip field or a grass meadow, and that the jury should have been so instructed.

It seems to me, also, that there was error in the instruction of the court in regard to the insurance. The fact that the buildings were near the railroad was before the jury, and that in itself was evidence from which they might form some judgment as to the risk of damage from the fire. It seems plain enough that the legal liability of the railroad corporation to indemnify against damages by fire from their engines was a very poor substitute for insurance. Seeking an indemnity from a railroad corporation, taking upon one's self the burden of showing that the loss was occasioned by fire from the engine and not by any of the other numerous means by which fire might be occasioned, is quite a different thing from seeking indemnity from an insurance company. The responsibility of railroad corporations, too, taking them one with another as railroad corporations exist in the country, is a very different thing from the responsibility of such an insurance company as the party may himself see fit to select. It was, therefore, a question of fact, which might well have been submitted to the jury, whether, under all the circumstances, the increased danger of fire from the engines could be so balanced by the liability of the corporation as to leave no diminution in the value of the property.

LADD, J. The land-owner is entitled to compensation for such dam age as will result to him from the proper construction, maintenance, and operation of the road over the land taken for that use; and I am of opinion that exposure of his remaining land, whether occupied by buildings or not, to fires by the company's engines, is a proper element to be considered in making the estimate. 1 Redf. on Railw., ch. 11, §§ 74, 82,

and cases in notes.

This being so, the question is, whether the statute imposing an absolute liability upon the company to pay all losses occasioned in that way necessarily covers the whole ground sq as to leave nothing for estimation on that score; and I think it does not.

Our statute on this subject is in effect identical with that of Massachusetts. In Pierce v. W. & N. Railroad Co., 105 Mass. 199, COLT J., says: "It is plain that this indemnity [that furnished by the statute] is not so perfect and complete as to preclude, in the estimate of damages, a consideration of the direct effect of a constant liability to destruction by fire from this new source upon the present value of a dwelling erected upon the remaining portion of the estate, as a safe and comfortable residence, or for purposes of sale. The present value of the

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Adden v. White Mountains Railroad.

property must be to some extent depreciated although there is a chance that the buildings may never be destroyed by fire, and although, if they are, it is certain that the owner, whoever he may be, will be indemnified under the statute for the actual loss he sustains. The injury to be measured in the assessment of damages occasioned by the location of the railroad, in this respect at least, is broader than the indemnity of the statute."

It is argued that the facts shown on the trial did not call for or warrant the instructions requested, inasmuch as there was no evidence as to insurance one way or the other. But the exception was to the instruction given, as well as to the refusal to give those requested; and I think the only just interpretation that can be put upon the case as reported is, that the jury and counsel, as well as the court, must have understood that no damages could be given on account of exposure to fire from this source by reason of the indemnity for actual loss furnished by the statute, to the provisions of which the attention of the jury was specially directed by the court. I think this was erroneous, and that this exposure was proper matter for consideration by the jury, of course under proper instructions as to making due allowance for the indemnity provided by the statute.

The general proposition given to the jury, as to special benefits to the land-owner arising from the construction of the railroad, were clearly correct; but I doubt the correctness of their application upon the facts reported. How do the facilities afford the appellant with respect to his growing pine trees standing on the land adjacent to the railroad, and the consequent benefit to him, differ in kind from the advantages and benefits enjoyed by all the owners of similar lands in the neighborhood? It seems to me at most a mere matter of degree, dependent upon the distance of such lands from a station or turn-out on the proposed road. If it had appeared that the company had constructed, or bound themselves to construct, a turn-out or side track for the special accommodation of the appellant in getting his pines to market, a different case would be presented. As it is, I am inclined to the opinion that this was not a a case where the jury were authorized to make any deduction on account of supposed special benefit to the land-owner. See remarks of PERLEY, C. J., in Pet. of Mt. Wash. Road Co., 35 N. H. 147.

Verdict et aside.

Plaintiff, a common carrier, received goods marked "C. O. D." to be delivered at a point beyond his line and delivered them to defendant, a connecting carrier, to be transported to their destination and delivered. Defendant delivered them without collecting payment. Held that the plaintiff could maintain an action against defendant for such wrongful delivery.

CTION on the case for the wrongful delivery of goods.

Plaintiff was an express carrier between Newmarket and Boston. On Oct. 27, 1870, one Haley delivered to plaintiff a package containing a coat and vest and directed to "C. M. Abell, Amesbury," to be left at the American House, and accompanied by a bill containing the following: "C. M. Abell to B. F. Haley, Dr., 1 Coat and vest. C. O. D. 6 Spring-beds, $27.00." Amesbury was not on plaintiff's line and at the nearest point he delivered the bundle with the bill attached to defendant, also a common carrier, to be delivered as directed. Defendant delivered the bundle to the consignee without collecting the amount due, and the plaintiff brought this action. There was no pretense that plaintiff had been compelled to pay Haley. The plaintiff had judgment and the case was reserved as to whether the plaintiff was the proper party.

Marston, for defendant, cited Gray v. Jackson, 51 N. H. 9; S. C., 12 Am. Rep. 1; Railroad v. Manufacturiny Co., 16 Wall. 318; Price v. Oswego Railroad, 58 Barb. 599; Weed v. Barney, 45 N. Y. 344; S. C., 6 Am. Rep. 96; Railway Co. v. Merrill, 48 Ill. 425; American Ex. Co. v. Lesem, 39 id. 312; Salinger v. Simmons, 2 Lans. 325; Williams v. Holland, 22 How. Pr. 137.

Wiggin, for plaintiff, cited Elkins v. Railroad, 19 N. H. 337; Mayall v. Railroad, 19 id. 122; Woodman v. Nottingham, 49 id. 387; S. C., 6 Am. Rep. 526; 2 Redf. on Railways, § 175, par. 8 and 9; Shearm. & Redf. on Negligence, § 54; Bowlin v. Nye, 10 Cush. 416; Robinson v. Austin, 2 Gray, 564; Angell on Carriers, §§ 319, 432; Lichtenhein v. Railroad, 11 Cush. 70; Hyde v. 1rent Nav. Co., 5 T. R. 389.

SMITH, J. 1. The first question reserved is, whether this action can be maintained in the name of the present plaintiff: and upon this point the authorities are quite uniform. A bailee of goods for hire may sus tain an action against a carrier for negligence; and it can make 10 dif