Dimmick v. Delaware, Lackawanna & Western Railroad

Per Curiam, The plaintiffs’ bill set forth the folloAving facts. The plaintiffs are owners of a tract of land which was crossed by the surveyed line of the defendant company’s railroad. A right of way over the tract was obtained by proceedings under the general railroad law of 1849, which were had in 1850. The company did not construct a farm crossing over the track for the owners of the land. In 186.1, the parties made a settlement of the claim of the owners, adjusting the damages accrued to that date at $170, which were paid, and the railroad company agreed to put in the crossing. This has not been done. The bill was filed at the November term, 1896, seeking the specific execution of the agreement made in 1861. The prayers for relief are for a mandatory order directing the defendant to build the crossing, and for an ascertainment of the damages sustained by the plaintiffs for the want of it for the last thirty-five years. 472 The defendant' demurred, assigning as reasons for the demurrer that the bill did not present a case for relief in equity, and that the plaintiffs had an adequate remedy at law under the act of February 19, 1849, which it was their duty to resort to. The court below sustained the demurrer, and this appeal is from that decree. Upon the facts of this case, we are of opinion that both of the reasons assigned for the demurrer are good. The remedy the plaintiffs had open to them in 1850 and 1861 was not in equity, but at law, and in the manner pointed out by the general railroad law of 1849. We see no reason upon the facts before us for doubting that their standing in a court of equity has not been improved by a delay of thirty-five years in asserting the remedy provided by statute for them. The assignments of error are not sustained and the decree is affirmed.