Rensselaer v. Albany & West Stockbridge Railroad

Rapallo, J. Although the referees have found that the embankment was carried away through the negligence of the *68 defendants, yet they have not found any other negligence than such as consisted in the mode of construction of the embankment, and in allowing it to remain in the condition in which it was at the time of the execution, by the plaintiff’s father, of the instrument dated January 20, 1859. The referees find that the embankment was then in an unsafe condition, and in a condition in which it was negligent to allow it to remain, but they do not find that it had become dilapidated for want of repairs, or any more unsafe in 1869, when the flood occurred, than it was in 1859, and there is no evidence in the case that such was the fact. The referees further find as a conclusion of law, that the instrument of January 20, 1859, did not create either an easement or a covenant running with the land. The case depends upon the correctness of this position. We have carefully examined the authorities, and have come to the conclusion that the instrument in question was intended to and did, in effect, confer upon the railroad company the privilege of allowing the embankment to remain as it was, free from any claim on the part of the then owner of the premises in question and his heirs for damages which might arise from earth or other material being deposited thereon by land-slides occurring in consequence of the peculiar construction of the embankment, or of the nature of the soil at the point where said embankment adjoined his land; that this was a servitude to which the plaintiff’s father had the power to subject his land, and that he did so subject it for a valuable consideration paid to him by the company. He covenanted that he would make no claim for future damages for the deposit of earth, etc., on his lot by land-slides from the embankment, and covenanted that he and his heirs would consider the money then paid as full compensation for all future damages to his land in consequence of the embankment, and that the instrument should be a bar to all future claim. This we think was equivalent to a grant, in terms, of the privilege of maintaining the structure complained of free from liability for any damage to his land which it might occasion, and subjected the land to *69 the servitude of having earth deposited thereon by landslides from the embankment; that the plaintiff inherited the land subject to that servitude^ and that to the extent of the injuries arising therefrom the instrument of January 20, 1859, was a defence to this action. The authorities on the subject are so fully reviewed in the opinion of Boardman, J., at General Term, that we deem it superfluous again to refer in detail to the cases or to repeat what that learned judge has said, concurring generally in the conclusions at which he has arrived. The order granting a new trial must be affirmed and judgment absolute rendered for the defendant, with costs, pursuant to the stipulation. All concur. Order affirmed, and judgment accordingly.