Carson v. Western Railroad

74 Mass. 423

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1857
• Status: Published

Opinion

Bigelow, J.

The plaintiff does not allege or offer to prove that the defendants, in erecting the fence, acted wantonly, negligently or maliciously, or with any purpose of inflicting injury on him or his property. On the contrary, it appears that the fence was built on land belonging to the defendants, for the legitimate object of preventing the track of their road from being incumbered with snow. This was certainly a proper and reasonable use of their own property; and although it may have caused annoyance or injury to the plaintiff or his property, it gives him no cause of action. Such acts do not fall within the maxim, sic utere tuo ut alienum non Icedas, but within another legal apophthegm, qui jure suo utitur neminem Icedit. Howland v. Vincent, 10 Met. 371.

The agreement in the deed to the defendants, by which the plaintiff’s grantors and their heirs undertook to build and maintain the fence between the land now owned by the plaintiff and that of the railroad, has no bearing on the question at issue in this cause. That related only to the division fence between the parties, and cannot operate to prevent the defendants from erecting on their land and at their own expense a fence or other barrier necessary or convenient to protect their track from accumulations of snow, which might delay public travel and require the defendants to expend money in removing them.

Exceptions overruled.