The declaration contains a count in trespass,for making an embankment on the plaintiff’s land, in Cherry street, in New Haven, where that street divides the land into two separate lots, one being on each side of it. The defendants’ railroad is not constructed upon the plaintiff’s land, but is bounded by it, where it crosses Cherry street, as far as his land extends.
The motion states, that the public safety required, that the railroad should pass under Cherry street; and for that purpose, it was necessary, that the street should be carried over it, by means of a bridge, and that it should be sufficiently filled up, at the point -where it crosses the plaintiff’s land, to accommodate its grade to the height of the bridge. Such alterations of highways, where the railroad is made to cross them, are contemplated in the defendants’ charter; and, as the embankment in question was made, for the purpose of restoring Cherry street to its former state, ■“ or in a sufficient manner not to impair its usefulness,” it must be considered as licensed, or authorized thereby. The plaintiff, however, claimed, that, as no damages were appraised or paid to him therefor, under the charter, he was entitled to recover them, in this action. And he further claimed, that he was entitled to recover, on the count in trespass, whether he proved any actual injury or damage, or not.
So far as this case is concerned, an examination of the latter clause of this proposition, has become wholly unnecessary ; because, the jury having found a substantial injury, to the extent of $3,000, for which they gave the plaintiff *84damages, for the erection of this very embankment,—no other injury having been claimed by him,—it is obvious, that the claim did not apply at all to the case proved, and the defendants could not have suffered, by the ruling of the judge in its favor; and so they are not entitled to a new trial here, although the case might have been different, had there been a verdict for nominal damages merely. As the point, however, may frequently arise in cases of this sort, and is fairly raised upon this motion, we have determined to express our opinion upon it. Now, there is no doubt, that, for any wrongful invasion of another’s property, some damage necessarily results; and the law does not require any distinct injury to be shown, in order to justify a recovery. It considers the infringement of the rights of a party, an injury, for which damages must be given ; because upon no other principle can one’s rights be protected. Every infringement of them must, to some extent, endanger the right itself, and a continuance of the infringement would, in time, deprive the party altogether of his right. If, therefore, the acts of the defendants had been committed upon property not covered by a highway, the plaintiff’s claim would, without doubt, have been correct. 'He would have a right to protect his own exclusive possession of it; and for that purpose, must, of course, have the right absolutely to exclude all others from it; and, whether the acts were injurious to him or not, would not depend upon whether his property was injured, in a pecuniary point of view, no matter even if it was bettered and improved in value. Still, he would have the right to say, that his close was broken, and his possession infringed upon, and for such an invasion of his right, the law would give him damages. But in regard to the plaintiff’s land, included in this highway—Cherry street,—he does not, we think, stand in such a relation to that, that he can treat the mere entry of the defendants upon it, as a breach of his close, and, therefore, an infringe*85ment of his right. To have that effect, the entry must be unauthorized.
We do not deny or dispute the doctrine of the cases cited by the plaintiff, in support of his claim; but we do not see that they apply to this case. No doubt, he still owns .the fee of this land; and the public, by establishing the highway, only acquired a right of way over it, with the incident right of repairing it in a reasonable manner. Our own case of Chatham v. Brainard, and the cases on which it rests, decide that very fully; and if here, as in the New York cases, the defendants had laid their railroad over this land, and had laid down their timbers and rails upon it, and had thus appropriated it to their own use, we do not deny that they would be liable for such an entry. In such a case, the subjecting of the plaintiff’s property to an additional servitude, is an infringement of his right to it, and is therefore an injury and damage to him. It would be a tak-' ing of the property of the plaintiff, without first making compensation, which the defendants’ charter does not authorize ; and we are not now about to say, that it would be legal or constitutional, if it did. But, the acts complained of in this cafe, are precisely of the same character, as a portion of the defendants’ acts in the case of Bradley, 21 Conn. R., 294, which we held not to constitute a taking, within the meaning of their charter, or of the constitution of the state.
To return, then, to the question on which this point turns : were the acts of the defendants authorized in the first place, by their charter? and if so, then, were they, by the general law of the land, illegal, notwithstanding such authority ?
By the tenth section of their charter, it is provided, that “whenever, for the construction of their railroad, it shall become necessary to intersect or cross any stream of water, or water-course, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same, but the said company shall restore the said stream, *86or water-course, or road or highway, thus intersected, to its former state, or in sufficient manner not to impair its usefulness.,r This section, it must .be admitted, in direct terms, authorizes the construction of the railroad across this street, and it throws upon the company, the burden of restoring the street to its former state, so far as not to impair its usefulness. To do that, the motion show's, that it was necessary to build the bridge, and guard the street so as to make the bridge accessible ; otherwise, the usefulness of the street would have been destroyed.. The work was done, then, under the express authority of the legislature. Is there any restriction in the charter, in regard to the work, or any condition which must be performed before it is done 1 We discover none in regard to this work, if, in doing it, no one is injured. We have seen that, by it, the plaintiff’s property was not taken. The defendants claimed no right to take, and did not profess to take it; they performed the work, as a burden thrown upon them, in consideration of their permission to build their road across Cherry street. That they built their railroad, for their own private purposes, can make no difference with this question. Suppose the legislature had incorporated a company, with power to erecff a mill, to be supported by the toll taken from its customers, and had authorized the company, to cross highways, with their canal or ditch, provided they restore them to their former condition, the question would be the same as here. If they take property, it must be paid for; if they injure it, this charter provides that they must pay for that; but, if they neither take nor injure it, there is not, clearly, anything in this charter, that compels them to pay.
The question, then, resolves itself into a question of power in the legislature, to alter the grade, or authorize a corporation, or individuals, to alter the grade of a highway. But the legislature may construct and establish new highways, or it may delegate this power to subordinate bodies or corporations, as, to the county court, to towns and cities, *87and to turnpike companies ; and, for convenience, it is generally so done. But this does not divest the legislature of its power; and if it can directly, through its own immediate agents, make new highways, this general and greater power, of course, must include the lesser power to regulate, alter or repair them,—and this power is only limited by the constitutional provision, that compensation must be made for property taken for this object,—as it must also for any other public object. We agree with the defendants’ counsel, therefore, that the ruling and charge of the court, on this point, was incorrect, inasmuch as it withdrew from the consideration of the jury, the question of the plaintiff’s injury, and instructed them to find a verdict in his' favor, whether he was injured or not; and, had the verdict been such as to show, that the defendants had been, or might have been, injured by the ruling, we should have felt bound to grant them a new trial.
We, however, have been unable to see, that the defendants could have suffered at all, from the ruling; and we have only examined the point, that it may be understood, that we do not sanction the ruling, as a correct exposition of the law. The defendants admit, as they must, that if the plaintiff has sustained any appreciable damage, he has a right to recover for that; and it is not denied, that it is proper for him to recover for it, on this count. It is not necessary or very material for us to decide, whether trespass or case would be the appropriate remedy, because the plaintiff has declared, as by our statute he may, in both forms, for this injury. Still we do not see, why trespass, with force, is not the proper remedy. We think it is; and that he can recover in that form, if he can recover at all. He owns the land, and, subject to the public easement, is in possession of it. The injury to it, by the defendant, is direct, by his entering upon it, and depositing materials there. So far as he is justified in this, in consequence of there being a highway there he is not guilty of anything; but if he goes beyond his jus*88tification, then he is guilty of a direct trespass; his justification fails; and he is in the same condition, as if he had made the same entry, upon any separate inclosure of the plaintiff, not subject to any public easement. Hence, all the actions for such injuries have been trespass. Chatham v. Brainard, 11 Conn. R., 60.
A new trial is asked for, on the ground, that the damages given were excessive, and contrary to the weight of the evidence. It is said, that the jury must have disregarded the instruction of the court, “ that in their estimate of damages, they should, allow the defendants the local, personal, and particular advantage to the plaintiff’s premises, occurring from the construction and use of the road.” If it could be seen, that this was so, then undoubtedly the defendants would be entitled’to a new trial, on that ground, unless, indeed, the instruction given was itself erroneous ; but this is not claimed, and could not be. The rule of damages is given in the defendants’ charter, and is a rational and just rule. When the damages are assessed, by freeholders appointed for. this purpose, in the manner prescribed by the charter, they are to inquire into the extent of them, and they are to “ assess just damages to the person or persons, whose real estate may be taken or injured.” The language is substantially the same as is used, in regard to the laying out of highways, by selectmen or the county commissioners,—in which case, we believe the practice is, in the assessment of damages, to consider the local and peculiar benefit that the proprietor, whose land is taken, receives by the improvément, in respect to his lands not taken, but which are contiguous to the road; damages, thus assessed, are properly considered the only “just damages.” If this would have been the rule, had the damages been assessed by freeholders, it seems to be the proper rule, in a case like this. Now, damages made up in this way, must of necessity be mere matter of opinion. The only precision there could be in the case, was, in regard to the expense • the plaintiff *89had been at, in raising his stores, so as to conform to the improved grade of the street. He had expended a considerable sum for that purpose, of which he was able to show the amount. But the injury to his buildings, caused by the necessity of raising them, and the peculiar benefit of the railroad to his property, to be taken from the estimated and actual injury, were of course, mere matters of opinion. The witnesses differed very much in regard to them. There was evidence, which went to show that the damages were not estimated high enough, and there was evidence, that went to show they were estimated much too high. It is not to be expected, on such a subject, that witnesses can agree. We probably should have estimated them less than were in fact given; but on such a subject, we think, as a general thing, the finding of the jury must be final; and we see nothing in this evidence, to induce us to believe, that the jury have acted corruptly, or disregarded, in any respect, the instruction of the court.
We therefore do not advise a new trial.
In this opinion the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.
New trial not to be granted.