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like manner the said passage-way or road under said railroad, of the capacity, dimensions and width, and in all other respects of the description and character, as specified and described in said agreement or conveyance, as hereinbefore set forth, and that process, in the nature of an injunction or order of the court, may be granted and adjudged to the plaintiff against the said defendant, commanding and enjoining the said defendant to construct and maintain, as aforesaid, the said crossings, and to construct the said passage-way or road under said railroad; or for such other or further judgment, order or process as the nature of the case may require. And the said plaintiff further demands judgment against the said defendant for the plaintiff's damages, sustained by reason of the breach of, and failure and neglect of defendant to perform said covenant and agreement, in the sum of three thousand dollars, besides the costs of this action.

S. & V.S.,

Plaintiff's Attorneys.

(No. 13.)

To compel performance of a legal obligation, not arising on

contract, against a railroad company, namely, to construct a bridge, and passes or roads across its track, pursuant to statute incorporating it, and for damages.'

SUPREME COURT-COUNTY OF COLUMBIA.

Andrew C. Getty

agt. The Hudson River Railroad Company.

The complaint of Andrew C. Getty, plaintiff in this

The following precedent is inserted as one that may be of service in drawing complaints in similar cases, although the Supreme Court,

action, respectfully shows, that he is, and for some time past has been, the owner in fee of a certain lot or farm of land in the town of Greenport, in the county of Columbia and State of New York, now occupied by him, lying on and adjoining the Hudson river on the east side thereof, and on a bay of said river, which said farm is bounded on the south by lands of one Robinson, on the north by lands of James Dubois, and on the west by the Hudson river, comprising a front of about one thousand two hundred and fifty feet on said river.

And said plaintiff avers, that by virtue of his said ownership and possession of said farm of land, and the part thereof fronting on said river, he was, and hitherto has been and still is, entitled to the free and unobstructed use of said river, and of all parts thereof, as a public highway to and from his said farm, and to the free and unobstructed navigation thereof, and all parts thereof, with boats, vessels and other craft, with or without masts, and of all sizes, as a means and as a place of access to and from his said farm, for himself and others; which said benefit and privilege he and those persons from whom he derives title to said farm have been in the habit of enjoying and using, and which the plaintiff did enjoy and use at the time of the construction of the defendant's railroad, as hereinafter stated, as the usual place of access to the said farm from said river, and to said river from said farm; and which said benefit and privilege said plaintiff still of right ought to have the liberty and privilege of enjoying freely, without permanent or other absolute obstruction from any one.

Yet the said defendants, well knowing the premises, did, on or about the 1st day of November, 1849, enter upon the said river, between the said farm of said plaintiff and the channel thereof, and between the channel of said river and low water mark, and at some distance from low water mark, to wit, at the distance of two hundred yards therefrom, and did then and there, with earth and stones, raise a line of solid embankment part of the way, and did then and there, also, with piles, driven into the bottom of said river closely together, construct what is commonly called a pile bridge the rest of the way, between the plaintiff's said farm and said channel of said river, which said bridge and embankment form a continuous line of obstruction between said farm and said channel, and commences and joins on to the main land at a point below, and at some distance, to wit, at the distance of a mile below said farm of said plaintiff, and ends and joins on to the main land again at a point above, to wit, at the distance of a mile above the said farm of the said plaintiff, and is elevated to such a height above the water, that the surface of said embankment is raised above ordinary high water mark of said river.

at general term, decided that no action could be maintained. The reasons of the court for the decision given will be found in the report of the case. (21 Barb., 617.)

And said plaintiff further says, that on the surface of said embankment and bridge the said defendants have laid a continued line of iron rail, commonly called a railroad track, extending from said point in said main land below to said point in said main land above said plaintiff's farm, and which said embankment, bridge, piles, track and obstruction said defendants still maintain, to the great damage of said plaintiff; by means whereof, said plaintiff is greatly injured, and cut off from the navigation of said river as hereinafter mentioned.

And said plantiff further shows, that on his said farm are divers beds of sand, from which it has been the custom heretofore, of those through whom he derives title to said farm, to sell considerable quantities of sand annually for the use of brick-makers, residing and using the same on the opposite side of said river, and for other

purposes,

and from the sale of which they were in the habit of deriving considerable revenue, to wit, the sum of two hundred dollars annually; and that vessels with masts, and otherwise of suitable size to carry away said sand, formerly could come, and were in the habit of coming, much nearer to his said farm than the line of said railroad, to wit, five hundred yards nearer than they can now come, by reason of said embankment and track and other obstruction.

And said plaintiff further says, that sometimes, during the winter season, the said river is frozen over so as to admit of the driving of horses and the carrying of loads thereon, and that it has been the custom of those through whom he derives title to said farm to transport a portion of said sand, so sold as aforesaid, to the opposite shore of the river, on sleighs or wagons drawn by horses or cattle; but that now he is entirely cut off from said benefit and advantage by said obstruction, and that he is unable, and hereafter will be unable, to pass said obstruction with loads. That the sides of said obstruction are too perpendicular, and that the track and string-pieces of said road are too near the surface of the water, to admit horses and loads to pass under said railroad, although said company have left one or two openings under said embankment and bridge for the flowing of the water, but which openings are entirely useless as a means of allowing plaintiff to pass said obstruction for any of the purposes above mentioned, whatever; and that by means of the premises, said sand banks have been rendered valueless to said plaintiff, and he is thereby also deprived of the annual income arising from the sale of said sand, which he otherwise might and could obtain therefrom.

And said plaintiff further alleges, that by means of the premises, he has been and still is cut off and intercepted from the use and navigation of said river by said obstruction between the channel thereof and his said farm; and is deprived of, and prevented from using, the same as a means of bringing vessels and craft, with masts and otherwise, of suitable size, to land on his said farm, to carry off the sand and produce therefrom, and to transport freight thereto.

And said plaintiff further shows, that by the fifteenth section of the act of incorporation of said defendants, entitled “An act to authorize the construction of a railroad from New-York to Albany,” passed May 12th, 1846, it is among other things provided as follows: “They are also required to construct such bridges as may be necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same to the bays that may be crossed by said railroad ;” and by the sixteenth section of said act it is also among other things provided : “In all cases where such railroad shall intersect the lands of individuals, or pass between such lands and the usual place of access to the river, and cannot be conveniently crossed by reason of high embankment, deep cuts, or otherwise, the said corporation shall, at their own expense, construct and sustain convenient passes or roads, across or under the railroad, for the passage of persons, cattle, carriages and teams, for the purpose of farming or managing such lands, and giving to them their usual access to the river.”

And said plaintiff further says, that although the farm of said plaintiff lies upon a bay of said river, crossed by said railroad, and said railroad passes between said plaintiff's said land and his usual and only place of access to said river, and cannot be conveniently crossed (during the time

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