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(No. 83.)

Against a railroad company for damages caused by raising

an embankment between high and low water mark in a navigable river, in front of plaintiff's premises, and thus cutting off his access to the river.1

SUPREME COURT - COUNTY OF COLUMBIA.

John S. Gould

agt. The Hudson River Railroad Company.

The complaint of the abovenamed plaintiff shows :

That he the said plaintiff now is, and for three years past has been, the owner, and in the actual occupation and possession, of a farm of land, lying and being situate in the town of Stockport, in the county of Columbia, and which is bounded on the north by lands of George Coventry, south by lands of Robert Harder, and west by the Hudson river; said farm extending along and having a front upon said river of about two thousand feet.

And the said plaintiff further shows, that the said Hudson River is a navigable stream, in which the tide ebbs and flows from the mouth thereof, where the same enters into the sea, to a point about forty miles above the said farm of the said plaintiff, and which ricer, being a public highway, the said plaintiff had a right to use with vessels, boats, floats and other crafts, to embark thereupon, from his said farm, for the purpose of carrying away, the produce thereof, and for the purpose of bringing manure and other materials to and upon the same, and for a long time previous to the construction of the embankment and railroad track by the defendants, as hereinafter mentioned, had used said river for such and other lawful purposes.

| The cause of action set forth in this complaint is similar to that in No. 13, Part II., ante, p. 81, although the relief claimed is different; and I have inserted the complaint for similar reasons (see note, p. 81), although it was held in this case also, and by the Court of Appeals, that the plaintiff had no right of action. The reasons of the court will be found in the reported case, Gould v. Hudson River Railroad Company (2 Selden, 522).

And the said plaintiff further shows, that in or about the month of September, 1850, the said defendants, being a body politic and corporate, created under and by virtue of the Legislature of the State of New York, and claiming to be authorized by law, entered upon the said Hudson river, in front of and adjacent to the said plaintiff's said farm, and between the ordinary high and the ordinary low water mark of said river, and with earth and stones, and other materials, then and there in said river, and below the ordinary high water mark thereof, raised and constructed a line of solid embankment, extending from a point in said river opposite the south line to a point opposite the north line of the said plaintiff's said farm, and which said embankment is a part of a solid embankment raised and constructed, by the said defendants, from the city of New-York to a point in the town of Greenbush and county of Rensselaer, opposite the city of Albany.

And the said plaintiff further shows, that the said embankment, in front of his said farm and for a long distance north and south thereof, is raised and elevated so that the surface thereof is about five feet above the ordinary high water mark of said Hudson river, and forms a complete barrier to the passage of vessels, boats, floats and other river craft through the same.

And the said plaintiff further shows, that upon said embankment the said defendants have laid a continuous

· The allegation of the plaintiff's “right to use," is a mere legal inference from the facts stated, and, like an allegation of " duty," &c., is unimportant for any purpose.

line of iron rail, commonly called a railroad track, extending from said city of New-York to said point in the town of Greenbush, and upon which they, the said defendants, are now running daily, and several times each day, trains of cars propelled by steam.

And the said plaintiff further shows, that in consequence of said embankment and railroad track, so raised and constructed by the said defendants as aforesaid, he, the said plaintiff, for more than a year past, has been and is now prevented from and obstructed in the passage of vessels, boats, floats and other river craft, from the said plaintiff's said farm to the channel of said Hudson river, and from the channel of said river to his said farm, and whereby the said plaintiff has been deprived by the said defendants of all means of getting from his said farm to said river, with vessels, boats, floats and other craft, for the purpose of removing the produce therefrom, and for other lawful purposes.

And the plaintiff avers, that the defendants so entered in and upon the said Hudson river, and raised and constructed said embankment and railroad track opposite his said farm, and such continuation thereof, north and south, without the permission or consent of the plaintiff, and without compensation or offering to compensate him for the damages and injuries aforesaid, which he has suffered, and which he was then and is yet likely to suffer, as the owner and occupant of said farm, from and by means of the construction of said embankment and railroad track, and the continuation thereof.

By reason whereof the said plaintiff has sustained damages to the amount of $500, and for which sum he demands judgment, together with the costs of this action.

J. H. REYNOLDS,

Plaintiff's Attorney.

(No. 84.)

Against a railroad company, as a common carrier, for

damages by reason of a failure to carry and deliver live stock with reasonable diligence.

SUPERIOR COURT - CITY OF NEW-YORK.

Clinton W. Conger, William H. Radcliff

and Lester Barker

agt. The Hudson River Railroad Company.

The plaintiffs in this action complain of the defendants, and state:

That the said defendants are a corporation under the laws of the State of New-York, and own and are possessed of a certain railway or railroad extending from the city of New-York to the city of Albany, in the state aforesaid, and also of certain cars used and run over and upon the said railroad, between the cities aforesaid, for the conveyance and transportation of passengers and freight between the cities aforesaid, and, as such corporation, are common carriers of passengers and freight in and upon their said cars, so run upon their said railroad, for reasonable hire and reward to be paid therefor.

And the said plaintiffs aver, that on the 29th day of March, 1854, they, the said plaintiffs, delivered to the said defendants, at the city of Albany aforesaid, sixty-five head of cattle, to be safely and securely conveyed and transported from the city of Albany to the city of New-York, upon and over said railroad, by and upon a train of cars which were to leave the said city of Albany at four o'clock in the afternoon of the day last aforesaid, and to be conveyed and transported, upon and by said railroad, with all reasonable and proper speed and diligence by the said defendants, from the city of Albany to the city of NewYork aforesaid, and to be safely and securely delivered, and with all reasonable dispatch and diligence, by the said defendants to the said plaintiffs at the said city of NewYork.

And the said plaintiffs further aver, that the said defendants, at the time and place aforesaid, accepted and received the said cattle into their said cars for the purpose aforesaid, and undertook and agreed to carry and transport the same over their said railroad, by and upon the said train of cars to leave Albany at four o'clock in the afternoon of the day aforesaid, and to carry and convey the same over the said railroad with all reasonable and proper speed, and to deliver the same to the said plaintiffs at the city of New-York, safely and securely, with all reasonable and proper diligence and dispatch, in consideration of and at and for certain reasonable hire and reward to be paid by the said defendants therefor.

And the said plaintiffs further aver, that the said defendants, disregarding their duty in that behalf, did not carry or transport the sixty-five head of cattle, or any of them, by and upon the said train of cars that left Albany at four o'clock in the afternoon of the said 29th day of March, 1854, and did not carry or convey them over their said railroad

1 The undertaking or agreement here set forth is, no doubt, nothing more than the implied contract, which the law creates, growing out of the legal duty and obligation of the common carrier on the delivery to him of goods to be fowarded. Under the old system it was always proper to plead an implied promise or agreement, that is, to plead the legal effect of the facts. But under the new system the facts themselves only should be pleaded, and legal conclusions should be left to the court. (See Pleadings, 240, 244, 284.) The cause of action in such a case is better and more accurately set forth in the next precedent.

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