Swift & Given's Appeal

Chief Justice Mercur delivered the opinion of the court, February 1st, 1886. In the location and construction of a railroad the Act of 19th February, 1849, prohibits the corporation from passing through, inter alia, “ any dwelling house in the occupancy of Hie owner or owners thereof, without his, her, or their consent.” This language must be so construed as to give a reasonable effect to the purpose and intent of the statute. It certainly does not mean that the prohibition extends only to preventing the railroad from actually passing “ through ” the dwelling house. When the latter is occupied by the owner thereof, the statute gives it all the protection necessary for its reasonable enjoyment as a dwelling for the owner and his family. This necessarily includes some curtilage connected therewith. The exact extent of that curtilage cannot be defined by any arbitrary rule as to distance. As each case arises the right of the owner and occupier of the dwelling house, against hostile location of a railroad, must be determined by a consideration of what is necessary for a reasonable and proper enjoyment of the house as a residence in view of its location and surroundings. Tested by that rule we do not think the location of the railroad in question is in conflict with the statute. The land to be taken is one corner of the rear end of the lot. It is 155 feet from the nearest portion of the house. It does not interfere with the use or enjoyment of any adjacent outbuildings, or ornamental structures of any kind, nor with any shrubbery or beautified lawn. It in no manner prevents access to the street, nor causes any substantial objection to the occupancy of the building as a dwelling house. In so far as it causes injury or damage to the house or lot, the appellants are entitled to recover compensation under the statute. Decree affirmed, and appeal dismissed at the costs of the appellants. Gordon, J., dissented.