deed of conveyance executed by said plaintiff and his wife, on or about the date aforesaid, to said defendant, to which plaintiff begs leaves to refer.

That said conveyance, on or about said date, was duly delivered to and accepted by said company, and the said company thereupon entered upon the possession of the right of way and land so conveyed, and continued to occupy and possess the same, exclusively for the uses and purposes of said road, up to the period when said road was completed and opened for public transportation of freight and passengers, which plaintiff alleges was sometime in or about the month of August, 1853, and subsequent to that time and hitherto the defendant has still continued in the exclusive use and occupation of said lands and right of way for the use of said road.

That in and by said indenture or conveyance of the said land, and in consideration thereof, the said defendant, the Albany Northern Railroad Company, did covenant and agree to and with the said plaintiff, among other things, to the effect that the said Albany Northern Railroad Company should construct and maintain two good farm crossings over said railroad, one of which was to be constructed in continuation of the one then already constructed by the Troy and Boston Railroad Company, and the other to be constructed near said Akin's northern boundary line, and that said Albany Northern Railroad Company should also construct a passage under "said (Albany Northern) railroad, sufficiently large to admit of a load of hay or grain to pass through; the surface of the road to be at least three feet above the level of the surface of the water in the Nipmush creek, and to be twelve feet wide from the bank of the creek to the abutment."

That although he, the said plaintiff, did execute and deliver said conveyance to said defendant, and did perform, all

and singular, the covenants, conditions and agreements on his part, mentioned therein to be performed, yet that said defendant has not performed or kept the conditions, covenants or agreements on its part, mentioned in said indenture or conveyance to be by it performed and kept, although a reasonable time, as the plaintiff alleges, has long since elapsed, and the defendant has been repeatedly requested by the plaintiff, or on his behalf, to perform and carry out its said agreements and covenants; but has made default therein, and has neglected and refused, and still neglects and refuses, to perform or carry out said covenants and agreements in the following particulars, to wit: that said defendant has not constructed or maintained any farm crossing whatever over the line of said road running through plaintiff's said lands, and has not constructed a crossing, or maintained one, in continuation of the one already constructed by the Troy and Boston Railroad; and has not constructed or maintained another near said Akin's northern boundary line, and has not constructed a passage under said (Albany Northern) railroad, of any capacity, width or character whatever, either sufficiently large to admit a load of hay or grain to pass through, or otherwise, or any road of any description whatever.1

Wherefore the plaintiff demands judgment against the defendant, that the said defendant may be adjudged specifically to perform his said contract, covenant or agreement with the said plaintiff, and may be adjudged to construct and maintain the said crossings over said road in a good, substantial and sufficient manner, at the places mentioned in the said agreement or conveyance, and to construct, in

1 As to assignment of breaches in pleading a bond, other than for payment of money, or other agreement or covenant, see Pleadings, pp. 238, 239.

like manner the said passage-way or road under said railroad, of the capacity, dimensions and width, and in all other respects of the description and character, as specified and described in said agreement or conveyance, as hereinbefore set forth, and that process, in the nature of an injunction or order of the court, may be granted and adjudged to the plaintiff against the said defendant, commanding and enjoining the said defendant to construct and maintain, as aforesaid, the said crossings, and to construct the said passage-way or road under said railroad; or for such other or further judgment, order or process as the nature of the case may require. And the said plaintiff further demands judgment against the said defendant for the plaintiff's damages, sustained by reason of the breach of, and failure and neglect of defendant to perform said covenant and agreement, in the sum of three thousand dollars, besides the costs of this action.

S. & V. S.,

Plaintiff's Attorneys.

(No. 13.)

To compel performance of a legal obligation, not arising on contract, against a railroad company, namely, to construct a bridge, and passes or roads across its track, pursuant to statute incorporating it, and for damages.1

SUPREME COURT-COUNTY OF COLUMBIA.

Andrew C. Getty
agt.

The Hudson River Railroad Company.

The complaint of Andrew C. Getty, plaintiff in this

1 The following precedent is inserted as one that may be of service in drawing complaints in similar cases, although the Supreme Court,

action, respectfully shows, that he is, and for some time past has been, the owner in fee of a certain lot or farm of land in the town of Greenport, in the county of Columbia and State of New-York, now occupied by him, lying on and adjoining the Hudson river on the east side thereof, and on a bay of said river, which said farm is bounded on the south by lands of one Robinson, on the north by lands of James Dubois, and on the west by the Hudson river, comprising a front of about one thousand two hundred and fifty feet on said river.

And said plaintiff avers, that by virtue of his said ownership and possession of said farm of land, and the part thereof fronting on said river, he was, and hitherto has been and still is, entitled to the free and unobstructed use of said river, and of all parts thereof, as a public highway to and from his said farm, and to the free and unobstructed navigation thereof, and all parts thereof, with boats, vessels and other craft, with or without masts, and of all sizes, as a means and as a place of access to and from his said farm, for himself and others; which said benefit and privilege he and those persons from whom he derives title to said farm have been in the habit of enjoying and using, and which the plaintiff did enjoy and use at the time of the construction of the defendant's railroad, as hereinafter stated, as the usual place of access to the said farm from said river, and to said river from said farm; and which said benefit and privilege said plaintiff still of right ought to have the liberty and privilege of enjoying freely, without permanent or other absolute obstruction from any one.

Yet the said defendants, well knowing the premises,

at general term, decided that no action could be maintained. The reasons of the court for the decision given will be found in the report of the case. (21 Barb., 617.)

did, on or about the 1st day of November, 1849, enter upon the said river, between the said farm of said plaintiff and the channel thereof, and between the channel of said river and low water mark, and at some distance from low water mark, to wit, at the distance of two hundred yards therefrom, and did then and there, with earth and stones, raise a line of solid embankment part of the way, and did then and there, also, with piles, driven into the bottom of said river closely together, construct what is commonly called a pile bridge the rest of the way, between the plaintiff's said farm and said channel of said river, which said bridge and embankment form a continuous line of obstruction between said farm and said channel, and commences and joins on to the main land at a point below, and at some distance, to wit, at the distance of a mile below said farm of said plaintiff, and ends and joins on to the main land again at a point above, to wit, at the distance of a mile above the said farm of the said plaintiff, and is elevated to such a height above the water, that the surface of said embankment is raised above ordinary high water mark of said river.

And said plaintiff further says, that on the surface of said embankment and bridge the said defendants have laid a continued line of iron rail, commonly called a railroad track, extending from said point in said main land below to said point in said main land above said plaintiff's farm, and which said embankment, bridge, piles, track and obstruction said defendants still maintain, to the great damage of said plaintiff; by means whereof, said plaintiff is greatly injured, and cut off from the navigation of said river as hereinafter mentioned.

And said plantiff further shows, that on his said farm are divers beds of sand, from which it has been the custom heretofore, of those through whom he derives title to said