Railroad, Taking land by eminent domain. Easement, Extent of taking by eminent domain. Equity Jurisdiction, To enjoin continuance of repeated trespasses. Trespass, When restrained by injunction. Equity Pleading and Practice, Report, Appeal.
Under our statutes the taking by a railroad corporation by right of eminent domain of land for the making and maintaining of its road is substantially absolute so long as the land is used by the corporation or its lawful successors for the purposes of a railroad, and the damages given for the taking are assessed upon the theory that the occupation will be permanent and practically exclusive.
Under Gen. Sts. c. 63, § 21, which provided that a railroad corporation should "pay all damages occasioned by laying out and making and maintaining its road," the taking of a meadow with a brook running through it included the right of flowage for all purposes, and the damages paid for such a taking must be held to have included compensation for the loss of any such right.
In a suit in equity by a railroad corporation to enjoin the defendant from flooding his meadow in such a manner as to cause the water to flow on the railroad location of the plaintiff and to endanger the embankment on which one of its tracks was laid, it appeared that the defendant had no right to flood his land in the manner complained of, and that the defendant had committed trespasses by such floodings on five occasions, of which the last two were in successive years and continued for periods of some months. The judge who heard the case found that there had been no perceptible impairment or disintegration of the railroad embankment by the action of the water as raised by the defendant, but found that there was occasion for solicitude in regard to the safety of the embankment and the railroad track supported by it. Held, that an injunction should be granted to prevent the continuance of repeated trespasses.
A court of equity will interfere to prevent the continuance of repeated trespasses to real estate under a claim of an adverse right persistently asserted, although the wrongful acts separately may not have impaired materially the use and enjoyment of the property affected.
In a suit in equity, which had been reported by a judge of the Superior Court for determination by this court upon a memorandum of decision made by him, it appeared by the record that, after the memorandum of decision was filed, a decree for the plaintiff, which had been ordered by the judge, had been entered as a final decree and that the defendant had appealed. This court, after deciding that the plaintiff was entitled to a decree, held, that, although, as the case had been reported, the decree should not have been entered before the decision of this court, yet the defendant's appeal gave this court jurisdiction, and it was ordered that the decree be affirmed.
BRALEY, J.
The report under which the case is before us is conclusive upon all questions of fact as the evidence has not been transmitted, and by its terms the Massachusetts Central Railroad, to whose rights the plaintiff has succeeded, acquired by eminent domain a location through the meadow or farm owned by the defendant. The right of way, even if defined as a public easement obtained by condemnation of the land, is substantially absolute so long as used for the purposes of a railroad by the corporation, or those succeeding by legislative sanction to its rights. Barnes v. Boston Maine Railroad, 130 Mass. 388, 389. Lorain Steel Co. v. Norfolk Bristol Street Railway, 187 Mass. 500, 502, 503. It is because of these characteristics of complete possession and control that damages for the taking are assessed upon the theory, that the occupation will be permanent and practically exclusive. Presbrey v. Old Colony Newport Railway, 103 Mass. 1, 5.
The defendant's grantors at the time of the taking were entitled to "all damages occasioned by laying out and making and maintaining its road." Gen. Sts. c. 63, § 21. No reservations in their favor were made, and it must have been apparent, that the construction and maintenance of the road would encroach for the width of the location upon the area which could be flowed. The right of flowage for agricultural purposes, or for the cultivation or nourishment of cranberries, under St. 1866, c. 206, now R.L.c. 196, § 39, or to furnish mill power, having been injuriously affected, the owners could have recovered compensation under the statute, to be assessed in connection with such additional damages as the premises had sustained. Davidson v. Boston Maine Railroad, 3 Cush. 91. Tucker v. Massachusetts Central Railroad, 118 Mass. 546, 547. Drury v. Midland Railroad, 127 Mass. 571. Fitz v. Nantasket Beach Railroad, 148 Mass. 35. Fales v. Easthampton, 162 Mass. 422.
The company having taken and paid for the location, the defendant, who neither by purchase nor by adverse user had gained a prescriptive title on the facts reported, could not lawfully overflow any portion without the plaintiff's consent. By causing the waters of the brook to be set back to a height sufficient to infringe upon it, he became a trespasser. Cheney v. Barker, 198 Mass. 356. Menut v. Boston Maine Railroad, 207 Mass. 12. The injury resulting, although found to have been inconsiderable, arose from the exercise of an adverse right persistently asserted before the filing of the bill, and which the defendant now contends he should be permitted to enforce. It is unnecessary in order for the plaintiff to obtain injunctive relief, that the evidence must show that irreparable injury has been caused, or is reasonably to be anticipated. A court of equity will interfere to prevent the continuance of repeated trespasses, where the wrongful acts when viewed separately, may not have materially impaired the use and enjoyment of the property affected. O'Brien v. Murphy, 189 Mass. 353, 357.
The decree ordered was in accordance with what we have said, and protects the plaintiff, but it should not have been entered, as the case had been reported. The defendant's appeal, however, gives us jurisdiction, and the decree should be affirmed. Hildreth v. Thibodeau, 186 Mass. 83, 84.
Ordered accordingly.