Inhabitants of Twp. of Raritan v. Port Reading R. Co.

• Decision Date: 11 December 1891
• Citation: 49 N.J.E. 11,23 A. 127
• Parties: INHABITANTS OF TOWNSHIP OF RARITAN v. PORT READING R. CO.
• Court: New Jersey Court of Chancery

23 A. 127

49 N.J.E. 11

INHABITANTS OF TOWNSHIP OF RARITAN

v. PORT READING R. CO.

Court of Chancery of New Jersey.

Dec. 11, 1891.

(Syllabus by the Court.)

Application of the inhabitants of the township of Raritan for an injunction to restrain the Port Reading Railroad Company from erecting in a public high way abutments for a bridge to be built by defendant. Order to show cause. Writ denied.

H. Brewster Willis and Charles L. Corbin, for complainants.

John R. Emery, for defendant.

MCGILL, Ch. The defendant railroad company is erecting in the public highway known, as "Smith Road" two abutments 25 feet apart and about 75 feet long and 6 feet wide, upon which it proposes to erect a bridge for its railroad over the highway. At the point where the bridge is to be erected the entire width of the road is 50 feet, and the part in actual use by vehicles is about 12 feet wide. It is not even pretended that to enable the defendant to bridge the highway it is necessary to place the abutments in the road. On the contrary, it plainly appears that the abutments are to be placed close to each other in the highway merely because it will be less expensive to build such a bridge than to erect one with a 50-foot span. The width between the abutments and the height of the bridge will be sufficient to accommodate the uses to which the road is at present put. The questions presented are: First, whether the defendant has authority to obstruct the road by placing therein abutments, when such occupancy and obstruction is not necessary to its crossing; and, second, whether this court will, at the instance of the complainants, interfere by injunction to prevent such an occupancy and obstruction of the road.

The defendant is incorporated under the general railroad law, and by that statute acquires whatever rights it possesses in crossing highways. That it may cross a high way cannot be questioned. That right is given by implication from the bare authority to build a railroad connecting distant points between which there exist highways that must be crossed, and as well from expressions in the statute which assume its existence; and, as it is impossible for a railroad to cross a highway without some incidental interference with it, such interference is also of necessity made lawful. These rights, however, must be limited to the necessity of the railroad in crossing. The courts will not assume that any authority in a highway is given except that which the statute plainly indicates, either in express terms or by clearly necessary implication, for every interference with the highway is an encroachment upon a pre-existing public right, which can only be tolerated when the law clearly sanctions it. "Public highways," said Chief Justice Whelpley in Railroad Co. v. State, 29 N. J. Law, 353, "ought not to be destroyed, even in part, under pretense of legislative authority, unless it be conferred either in express terms or by necessary implication. If the words are ambiguous, the construction ought to be in favor of the common highway; not against it." In Attorney General v. Railroad Co., 9 N. J. Eq. 558, Mr. Justice Potts put the principle so well stated by Chief Justice Whelpley as follows: "All grants of special privileges are to be construed strictly against the grantees and literally in favor of the public, and he who claims authority to impair or obstruct this right [right of navigation] by legislative grant must show it by clear and explicit terms of the grant itself, or at least by necessary implication." The general railroad law, § 102, (Revision, 929,) amended in 1882, (Supp. Revision, p. 828, § 19,) and again in 1887, (P. L. 226,) provides that it shall be the duty of a railroad company organized under that act "to construct and keep in repair good and sufficient bridges and passages over, under, and across the said railroad * * where any public or other road * * * now or hereafter laid shall cross the same, * * * of such width and character as shall be suitable to the locality in which the same are situated, * * * so that public travel shall not be impeded" by the railroad. It is insisted that this provision authorizes any encroachment in crossing a highway which will leave a sufficient passage to accommodate public travel in the highway at that point; that the force of the words, "width and character as shall be suitable to the locality," is to give authority to the railroad company to appropriate and narrow the public highway, where it crosses or is crossed by the railroad, to its own uses, provided a passage adequate for public accommodation be left. The case of People v. Railroad Co., 89 N. Y. 266, is cited in support of this insistment. In that case it was held that, under a provision of law that in crossing a public highway the railroad company should restore "the highway, as near as may be, to its...