Mathews v. Kelsey

Danforth, J. It is undoubtedly true that the location of a railroad within the limits of a highway would give the corporation using it only the rights of transit such as are necessarily connected [58] therewith, or incidental thereto. This would not include the right to build permanent structures which would interfere with the public travel. But, in this case, the illegality complained of is not the erection of any such structures, but the temporary stopping of the cars for the purpose of unloading, and the use of such appliances as were found useful and convenient for that purpose. There was sufficient space of way left unincumbered, to accommodate the public travel, and the incumbrance was of but a few minutes’ duration. The legal location of the railroad is not questioned. The corporation, then, had the right to carry passengers and freight in their cars along that way. The loading and unloading would seem to be but a necessary incident to the right of carrying. It is true that railroads ordinarily have depots as useful and convenient for this purpose, but no law compels them to build such appliances or precludes them from loading or unloading in other places. The only limit to their pleasure or convenience, in this respect, is a due and reasonable regard to the rights of others. They would not, of course, be allowed to infringe upon private property; but in this case their car was in the public way, and one in which, by law, they have the same right as others. Their right is one of transit, and such is the right of the public, and no more. As an incident to this right of transit, the public have a right to load and unload such vehicles as they find it convenient to use. But in this respect each individual is restrained by the rights of others. He must do his work in such careful and prudent manner ¡as not to interfere unreasonably with the convenience of others. Why should not the railroad corporation have the same right to load and unload, doing it in such a manner as not unreasonably to interfere with the rights or convenience of those having occasion to use the way for ordinary purposes of travel, and having regard to the different vehicles used, and the different means of propelling them? But this case does not present so much the rights of the railroad company, as those of the plaintiffs. It seems that they were doing business upon the line of the way, and had occasion for an addi [59] tional supply of merchandise. This could be obtained only over the highway, in some kind of a carriage, and could be got into the store only by unloading from the street. While so doing the carriage must be stationary, and often other instruments must be used to assist. In the moan time the way must be more or less obstructed, and the convenience of travelers, especially those who have occasion to pass over the side-walk, interfered with. If the plaintiffs had elected this course and performed their work in a reasonable manner, no one would have questioned their right, and the passers would have submitted to the temporary obstruction without a murmur. But instead of this they procured their goods to be brought in front of their door by a car, and there unloaded. The time of occupying the road by the latter method was much less than by the former. There was ample room for the accommodation of the travel; in fact, the obstacle was much less than would have arisen from the use of trucks and drays ordinarily employed on such occasions, — and the inconvenience to the defendant was rather diminished than increased. Under these circumstances we see no illegality in the acts of the plaintiffs, and, according to the agreement of the parties, judgment is to be rendered in their favor for one dollar damages and costs, as provided in the report. Appleton, C. J.; Cutting, Kent, Walton, Barrows, and Tapley, JJ., concurred.