Bangor Ry. & Electric Co. v. Inhabitants of Town of Orono

• Decision Date: 26 July 1912
• Citation: 84 A. 385,109 Me. 282
• Parties: BANGOR RY. & ELECTRIC CO. v. INHABITANTS OF TOWN of ORONO.
• Court: Maine Supreme Court

84 A. 385

109 Me. 282

BANGOR RY. & ELECTRIC CO.

v. INHABITANTS OF TOWN OF ORONO.

Supreme Judicial Court of Maine.

July 26, 1912.

Report from Supreme Judicial Court, Penobscot County.

Proceeding by the Railroad Commissioners to rebuild a bridge. Prom a decree of the Commissioners ordering the construction of a new bridge, to be partly paid for by the Bangor Railway & Electric Company, the company appeals adversely to the Inhabitants of Orono. On report. Appeal denied. Decree of Commissioners confirmed.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HANSON, JJ.

E. C. Ryder, for plaintiff.

C. J. Dunn, for defendant.

SPEAR, J. For many years prior to the organization and operation of the Bangor Electric Railroad the town of Orono had maintained a bridge, across the Stillwater branch of the Penobscot river, which was in every respect adapted and suitable for all the purposes of a highway bridge. Upon the extension of the railroad into the town of Orono, the railroad company, under proper authority, appropriated a part of this bridge to its own use and operated its cars thereon. In consequence of this unusual and increased weight imposed upon the bridge, which was neither anticipated nor necessary in its original construction, the structure, although repaired and strengthened from time to time, gradually weakened under the weight and vibration of the cars, until on the 28th day of July, 1911, its further use was prohibited to the railroad company by order of the Railroad Commissioners. This suspension of the use of the bridge resulted in operating the road by running the cars from each end of the bridge; the passengers, whatever the weather conditions, being obliged to walk the bridge in order to take the car and pursue their journey in either direction. This condition of inconvenience to the company and annoyance to the public has continued to the present time.

On the 22d day of July, 1911, the Railroad Commissioners, suo moto, gave notice of a hearing to be held on July 28, 1911, at which they would "determine the repairs, renewals for strengthening of parts, or, if necessary, the manner of rebuilding said bridge, required to make the same safe for the uses to which it is put. And said Railroad Commissioners will then and there further determine by whom the expenses of such repairs, renewals, strengthening, or rebuilding of said bridge shall be borne, or will apportion the same in such manner as shall be deemed by said board just and fair." Upon this notice the Commissioners met and adjourned the hearing thereon to August 9, and again from August 9 to October 13, 1911, when all parties in interest were fully heard and the various matters involved in the notice were adjudicated as follows:

"It is therefore hereby determined, ordered, and decreed that said wooden bridge shall be rebuilt, by constructing in place thereof a steel bridge resting upon granite or concrete piers and abutments, which shall be suitable and safe for both highway and street railway uses.

"Said new bridge shall be built by said Bangor Railway & Electric Company upon plans to be submitted to and approved by the Board of Railroad Commissioners, and all work thereon shall be done under the direction of said Board and to its satisfaction.

"The expense of rebuilding said bridge is hereby apportioned between said Bangor Railway & Electric Company and said town of Orono in the manner following:

"Upon the completion of said new bridge by said Bangor Railway & Electric Company, and its approval by the Board of Railroad Commissioners, the town of Orono shall pay said Bangor Railway & Electric Company, as its just and fair proportion of said expenses, 40 per cent. of the same; but said town of Orono's proportion of said expenses so to be paid said Bangor Railway & Electric Company shall in no event exceed the sum of $12,000.

"And it is hereby further decreed that, after the completion of said new bridge, the Bangor Railway & Electric Company shall thereafter maintain the planking between its rails, and the town of Orono shall maintain all planking for the roadway, and all other expenses of repairs and maintenance of said bridge shall be borne equally by said railway and said town."

From this adjudication the railroad company seasonably appealed to the next succeeding term of the Supreme Judicial Court to be held in Penobscot county, and within the proper time filed in the office of the Board of Railroad Commissioners its reasons of appeal, in substance as follows:

1. That the bridge described in the decree is a highway bridge, which the town was bound to maintain and keep in repair, and not the railroad company, and that the Commissioners had no authority in law to order the company to build a new structure or bridge.

2. The second reason, in its effect upon the decision of the case, is precisely like the first.

3. That, if the railroad company can be required to build a new bridge, then the Railroad Commissioners have not fairly or justly apportioned the expense of such building between the railroad company and the town of Orono.

4. That, if the Railroad Commissioners had authority to compel the railroad company to build a new bridge, then they have not fairly and justly apportioned the expense of maintaining said bridge after it is constructed.

The real issue in this case is whether the Railroad Commissioners were vested with authority to direct the railroad company to rebuild a new bridge in the place of the old one in accordance with their order and decree, and depends entirely upon a question of statutory construction. Revised Statutes, c. 51, § 75, contains the following provision relating to the power of Railroad Commissioners over the repair, maintenance, and construction of bridges appropriated for use in the operation of electric cars, to wit: "Bridges erected by any municipality, over which any street railroad passes, shall be constructed and maintained in such manner and condition, as to safety, as the Board of Railroad Commissioners may determine. Said Board may require the officers of the railroad company and of the municipality to attend a hearing in the matter, after such notice of the hearing to all parties in interest as said Board may deem proper. Said Commissioners shall determine at such hearing the repairs, renewals, or strengthening of parts, or if necessary, the manner of rebuilding such bridge, required to make the same safe for the uses to which it is put. They shall determine who shall bear the expenses of such repairs, renewals, strengthening or rebuilding, or they may apportion such expenses between the railroad company and the city or town, as the case may be, in such manner as shall be deemed by the Board just and fair, and shall make their report as hereinafter provided."

The defendant in argument raises two fundamental objections to the decree of the Commissioners:

1. The Railroad Commissioners have no jurisdiction to order the Bangor Railway & Electric Company to construct a new bridge, in renewal of the old one.

2. After said bridge has been constructed by the Bangor Railway & Electric Company, in accordance with the decree, the railway company has no power to enforce payment of any part of the costs from the town of Orono.

It is the opinion of the court that a fair and reasonable construction of the above statute is calculated to answer both of the above contentions in the negative. In construing this statute the appellant's counsel in argument admits, and very properly, that the Legislature...