Joseph Estabrooks vs. Peterborough and Shirley Railroad Company, 12 Cush. 224

Shaw, C. J. The remedy of the plaintiff, in the case stated in the facts agreed, was by an action of tort for the nuisance. If the obstruction of the river was strictly necessary, and no sufficient lateral canal could be made, then we should conclude that their mode of laying the railroad was contemplated and authorized by the legislature, and the remedy would be by complaint for damages. Dodge v. County Commissioners of Essex, 3 Met. 380 ; Springfield v. Connecticut River Railroad Co. 4 Cush. 63.

But it does not appear tlat it was necessary to locate the railroad so as to cross the river and obstruct it, but only that the engineers thought it the best mode, the easiest, and perhaps the cheapest. Nor does it appear that a canal could not be made, of a capacity equal to the original watercourse, to carry off the water, as required when such artificial watercourse is substituted for a natural one. Rowe v. Granite Bridge Corporation, 21 Pick. 344.

The course adopted by the railroad company not being over the plaintiff’s land, and affecting his estate only consequentially, and not being necessary, was not warranted by the charter; the flowing of the plaintiff’s land was a nuisance, for which he has his remedy at law. The plaintiff is therefore entitled to recover in this action, and an assessor is to be appointed, according to the agreement of parties.