City of Middletown v. N.Y., N. H. & H. R. Co.
| Decision Date | 06 March 1893 |
| Citation | 27 A. 119,62 Conn. 492 |
| Court | Connecticut Supreme Court |
| Parties | CITY OF MIDDLETOWN v. NEW YORK, N. H. & H. R. CO. |
Case reserved from superior court, Middlesex county.
Action by the city of Middletown against the New York, New Haven & Hartford Railroad Company to recover the expense incurred by plaintiff in replanking a certain bridge over defendant's tracks within the corporate limits of such city. Case reserved on an agreed statement of facts for the advice of the supreme court Judgment for plaintiff advised.
C. E. Bacon, for plaintiff.
H. C. Robinson, for defendant.
This is an amicable suit, brought upon an agreed state of facts, with all questions as to the form of action waived, for the purpose of obtaining a construction of section 7, c. 220, Pub. Acts 1889. The claim in suit is for expenses incurred by the plaintiff, amounting to the sum of $265.74, in replanking a bridge over the Air Line Railroad at Main street in the city of Middletown. The roof of the bridge forms the surface of the highway. Previous to the act of 1889 the railroad company had always assumed the duty of maintaining and repairing the bridge, but after the passage of that act refused to make further repairs, or longer maintain the planking upon the bridge, claiming to have been relieved therefrom by the provisions of the act. The bridge in question was rendered necessary by the construction of the New Haven, Middletown & Willimiantic Railroad in 1869, and was located across an existing highway by the railroad commissioners, who, in approving the layout of the railroad, ordered and adjudged that Main street and certain other streets "were to cross over said railroad on overcrossing bridges." At the time of the construction of the bridge there was a general statute, which reads as follows: "Every railroad company which may locate and construct a railroad across any turnpike, highway or public street, shall construct it so as to cross over or under the said turnpike, highway or street; and for this purpose it may, under the direction of the railroad commissioners, raise or lower said turnpike, highway or street at the said crossing, or change the location thereof, and shall make, keep up and maintain such bridges, abutments, tunnels, arches, excavations, embankments and approaches, as the convenience and safety of the public travel upon said turnpike, highway or street may require; but the railroad commissioners may, upon due notice to said company, and to the selectmen of the town or mayor of the city in which said crossing is situated, authorize and direct such company to construct its railroad at such crossing upon a level with the turnpike, highway or street." This statute was passed in 1849, appears in all the revisions since that time, was re-enacted with slight amendment in 1883, and now constitutes section 3480 of the General Statutes, revision of 1888.
It will be observed that this statute clearly contemplates that bridges or other structures placed over or upon existing highways by a railroad company in constructing its railroad shall thereafter be maintained by the railroad corporation. It is a general statute, applicable to the original construction of railroads. As early as 1849, when, for the first time, the support of these structures seems to have been a subject of consideration by the legislature, owing doubtless to the rapid construction of railroad lines, the lawmaking power apparently determined that, as the railroad corporations for their own private gain rendered such structures necessary at highway crossings, justice required that they alone should bear the burden of their maintenance. They therefore adopted that policy, and the general statute reflects the legislative will upon the subject The legislature evidently intended to relieve all towns wherein such structures are imposed by the necessities of railroad construction from all liability for their maintenance or repair. We have heretofore approved the justice of this policy. City of New Haven v. New York & N. H. R. Co., 39 Conn. 132. Yet notwithstanding this long-settled policy in dealing with this question, the defendant claims that the legislature of 1889 not only inaugurated, but intended to establish, an exactly opposite policy, the effect of which is to relieve the railroads from the expense of hereafter supporting these structures of their own creation, and casting the burden of their support upon the several towns within whose limits they may happen to be located. As to the power of the legislature to do this we have no question. English v. Northampton Co., 32 Conn. 240. It is not a question of power, but of intent Section 7 of the act of 1889 relating to grade crossings, upon the language of wliich the defendant bases its claim to exemption from further statutory liability to maintain the surface of the bridge in question, and of course of all bridges of the same character, wherever situated, is as follows: "It shall be the duty of the railroad companies to maintain and keep in repair all structures erected over their tracks at any highway crossing, but it shall be the duty of the municipality in which the structure is situated to keep in repair the surface of the highway, including planking or other surface material of the highway upon such structure." Undoubtedly the language of this section, if it stood alone and disconnected from the act of which it forms a part, is sufficiently broad and comprehensive in its terms to sustain the construction claimed for it by the defendant As an independent statute we should feel bound on general principles to adopt that construction, and to infer an intent on the part of the legislature to change the old policy and establish a new one in regard to the maintenance of structures of the class in question. There is a plausible force in the defendant's argument that inasmuch as the planking of a highway which forms the roof of a railroad bridge and constitutes the whole surface of the highway is under the constant observation of the municipality, which has notice of its defects, and by its use wears it out, therefore the municipality should be charged with the sole care and maintenance of the planking, as it is for all other parts of the surface of the highway. But whatever of merit there may be in these claims of the defendant, we are bound to infer that they were all duly weighed and considered by the legislature when it decided in 1849 to impose upon the corporations for whose sole...
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