Mahon v. Utica & Schenectady R. R.

By the Court,

Nelson, Ch. J.

The pleas constitute no answer to the action. The purchase of the Mohawk Turnpike Company under the act of 1838, only confered upon the defendants authority to use the road as a public highway, the same as before used and enjoyed by the Turnpike Company. It vested them with no greater powers than were possessed by the company, which were to occupy and maintain the line of the road as a public highway or turnpike. This is the only authority confered upon the Mohawk Company by their charter. (Sess. Laws of 1800, chap. 105.) They possessed no authority to make a rail road along the track of their highway. No such authority is given by their charter, nor did they enter upon and take possession of the lands over which it passes for that purpose, nor were the owners of the land paid their damages with a view to any such occupation of the same. They were paid the value of their lands for the use and occupation as a turnpike road, and nothing more, and the company were seized and possessed of the same for no other purpose, according to the true construction of the act of incorporation. (§§4, 5.)

*158The charter of the defendants, and upon which they must depend for their justification, empowers them to make the erections in question; and being the owners of the turnpike they have no damages to pay to the Mohawk Company, which, otherwise, they would have been bound to pay, according to the case of the Seneca Road Co. v. Auburn and Rochester R. R. Co., 5 Hill, 170.

But this does not excuse them from answering for such consequential damages as may arise to the adjacent owners by reason of such erections upon former public thoroughfares, as has already been' determined in the case of Fletcher v. The Auburn and Syracuse R. R. Co., 25 Wend., 462.

Judgment-for the plaintiff on demurrer, leave to amend .on .usual terms.