Nichols v. Inhabitants of Richmond

Morton, J. The petitioner’s premisós were situated on both sides of and adjoined the railroad, and were on the northerly side of the way. .They touched only at two corners that portion of the way within the railroad location which was discontinued. They did not, therefore, in any proper sense, abut upon the discontinued portion of the way, though they did upon other portions of it, and the case presented is that of a party who has been obliged, in passing from one portion of her premises to another, to use a way of which a part on which her premises do not abut has been discontinued, and who is compelled, in consequence of such discontinuance, to use a longer and moré circuitous and less convenient route over a new way substituted for and provided in place of the discontinued portion. It is well settled, we think, in this Commonwealth, that under such circumstances a party cannot recover damages for the inconvenience resulting from the discontinuance. Quincy Canal v. Newcomb, 7 Met. 276. Smith v. Boston, 7 Cush. 254. Brainard v. Connecticut River Railroad, 7 Cush. 506. Hartshorn v. South Reading, 3 Allen, 501. Willard v. Cambridge, 3 Allen, 574. Blackwell v. Old Colony Railroad, 122 Mass. 1. Davis v. County Commissioners, 153 Mass. 218. Hammond v. County Commissioners, 154 Mass. 509. Shaw v. Boston & Albany Railroad, 159 Mass. 597, and cases cited. The line has to be [173] drawn somewhere, on practical grounds, between those who may and those who may not recover for damages caused by the discontinuance, in whole or in part, of a street or way; and it has been drawn so as to limit the right of recovery to damages which are special and peculiar, and different in kind from those suffered by the public at large. In the present case, although, owing to the proximity of her premises to the discontinued portion of the way, and to the use which she made of them, the inconvenience and damage to the petitioner were greater than to others having occasion to use the way, the difference was one of degree, and not of kind. She was obliged to travel farther than before in passing to and fro between the different portions of her farm. But every one who passed over the way was subjected to a similar inconvenience. The fact that she had no farm crossing over the railroad cannot affect the result. The absence of such a crossing obliged her to use the way more than she otherwise would have done•, but it did not change the character of her user as compared with that of the public at large. According to the terms of the report, the entry must be judgment for the petitioner for one hundred and twenty-five dollars and interest, and it is 80 ordered.