(No. 82.) Against a railroad company, for injuries occasioned by carelessly running into an omnibus on a public street. SUPERIOR COURT-CITY OF NEW-York. Daniel Owen and Jeremiah G. Lugar agt. The Hudson River Railroad Company. The abovenamed plaintiffs complain of the abovenamed defendants, and say: That previously to and at the time of the occurrences hereinafter set forth, the plaintiffs were copartners in the business of carrying passengers, by means of divers public omnibus coaches, in and through certain of the streets of the city of New-York, and the defendants, a company duly incorporated by the laws of the State of New-York, also doing business therein. And for a first cause of action the plaintiffs complain, that on or about the 23d day of February, A. D. 1853, at the city of New-York, the defendants, through their agents or servants, or persons under their direction or control, or in their employ, in the ordinary course of and while prosecuting the defendants' business, carelessly, negligently and without any reasonable or just cause or necessity therefor, and without any fault or blame whatever on the part of the plaintiffs or their agents or servants, with a certain car or cars, to the defendants belonging, and then in motion through one of the streets in the said city, viz., the Tenth-avenue, near Twenty-Fourth-street, ran or drove against, or otherwise came into collision with, a certain omnibus stage, of and belonging to the plaintiffs, then being driven by one of the plaintiffs' agents or servants, in the pursuit of the plaintiffs' business, through the said street or avenue, by means whereof the said stage was greatly damaged and injured, and the plaintiffs were put to great trouble and expense in repairing the same, and suffered great loss and inconvenience in their business, by being deprived of the use thereof for the period of eight weeks or thereabouts, and otherwise sustained and were subjected to great expense and loss by reason of the premises, to wit, to the amount of $750, as the plaintiffs charge and believe.1 Wherefore the plaintiffs demand judgment for, &c. VAN DER HEYDEN & VAN DOREN, 1 The complaint set forth, in a similar way, another cause of action for a different injury, sustained at another time, and, in addition to the ordinary damages, alleged, by way of special damages, that one of the passengers in the omnibus, who had been injured by the collision, had recovered judgment against the omnibus proprietors for $4,087.50, which had been compromised for $2,000. The plaintiffs, however, did not recover upon this part of their claim. (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 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 river, being a public highway, the said plaintiff had a right to use with vessels, boats, floats and other crafts, to embark thereupon, from his 1 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). 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,1 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. 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. |