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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

said river is frozen over) by person or teams, &c., by reason of the perpendicular sides of said embankment, and otherwise, yet said defendants have not constructed or sustained any passes or roads across said railroad for the passage of persons, cattle, carriages and teams, for the purpose of enabling said plaintiff to farm and manage his said lands, and giving said plaintiff his usual access to the river during the winter, when navigation is stopped and the river frozen over as aforesaid.

And said plaintiff further alleges, that although long prior to said month of May, 1846, and in said month, and from that time up to the time of the completion by the defendants of their railroad, as hereinbefore mentioned, vessels and boats of various kinds, with and without masts, had passed and could pass, and now could (if not prevented by said obstruction) pass into and from said bay to the land of said plaintiff, and although said defendants are required so to do, yet the said defendants have not constructed such bridge or bridges as are 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 said bay, which is crossed by said railroad as aforesaid, to the great damage of said plaintiff.

And said plaintiff alleges, that the said defendants have not in any manner made him any compensation, on account or by reason of the matters and things herein stated, nor made any agreement with him in relation thereto, nor derived any right in reference thereto, or to the property herein mentioned, by gift or purchase; and he further alleges, that they have not taken any steps of any kind to ascertain the compensation to be made therefor to him in the premises, and that no such steps have been taken.

Wherefore said plaintiff demands judgment, that said defendants may be ordered and adjudged by the judgment

of this court to construct, at their own expense, and maintain convenient passes or roads across said railroad, as is required by the sixteenth section of said act, 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 that said defendants may be further ordered and adjudged by the judgment of this court to construct, forthwith, such a bridge as is required by the provisions of said fifteenth section of said act; and that said defendants may pay to said plaintiff his damages, by him sustained in consequence of said acts, in the sum of $5,000.

And that the said plaintiff may have such other and further relief in the premises as the nature of his said case may require, besides the costs of this action.

G. C. & E. J. GENET,
Plaintiff's Attorneys.

(4.) INJUNCTIONS TO RESTRAIN COMMISSION OF WRONGFUL ACT.

(No. 14.)

By a landlord against a lessee for years, to restrain waste and compel him to put the premises in good condition.

Title of the Cause.

The plaintiff complaining of the defendant, alleges the following facts as his cause of action: That before and at the time of making the indenture, hereinafter mentioned, he was seized in fee simple, in his own right, of the following lands and tenements: [Describing them.]

That being so seized, by a certain indenture, bearing date the, &c., and made between the plaintiff of the one

part, and said defendant of the other part, he, the said plaintiff, did demise, lease and to farm let, unto the said defendant, his executors, administrators and assigns, the above described premises, to hold the same, with the appurtenances, unto the said defendant, his executors, administrators and assigns, from the

for the term of

day of

years, at the yearly rent of $That said defendant did, in and by said indenture, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree with the plaintiff, his heirs, executors, administrators and assigns, that he would, during the said term, keep the said premises in good repair, and manage and cultivate the said farm and lands in proper and husband-like manner, according to the custom of the country, as by the said indenture of lease, reference being thereunto had, will more fully appear.

That said defendant, under and by virtue of said indenture, entered upon said demised premises, with the appurtenances, and became and was possessed thereof, for the said term, so to him granted by plaintiff, as aforesaid.

That at the time said defendant entered upon the said premises, the same were in good repair and condition; that a portion thereof, containing about acres, consisted of valuable standing timber, and another portion, containing about acres, consisted of ancient meadow land, which had so remained for many years, and as long as said lands had been owned by the plaintiff.

That by the mismanagement of the said defendant, the buildings, out-houses, gates, rails and fences on said premises, which were in good and perfect condition when the defendant took possession thereof, have become and are ruinous and bad, and by the improper cultivation of defendant, the land has become very much deteriorated.

That said defendant has ploughed up said meadow land and committed waste thereon.

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