Town of Roxbury v. Central Vt. R. Co.
| Citation | 14 A. 92,60 Vt. 121 |
| Parties | TOWN OF ROXBURY v. THE CENTRAL VERMONT R.R. Co |
| Decision Date | 30 May 1888 |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1887
ACTION based upon section 3383 of the Revised Laws. Heard on demurrer to the writ and declaration, March Term, 1885 Washington County, REDFIELD, J., presiding. Demurrer overruled. Exceptions allowed and ordered to be certified into the Supreme Court. The County Court having adjudged the writ and declaration sufficient, the defendant pleaded the general issue with notice of a special matter to give in evidence; and there was a trial by Jury, March Term, 1885 POWERS, J., presiding. Special and general verdict for the plaintiff.
Judgment affirmed. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Noble & Smith and B. F. Fifield, for the defendant.
This suit was brought to recover of the defendant railroad company the amount of a judgment which had been rendered against the plaintiff town for injury to a traveller upon a highway by reason of its insufficiency which consisted of an embankment or fill constituting an approach in the highway to a railroad crossing, and having no railing at the sides of the fill to protect the traveller from going off.
The defendant company was cited in to defend the former suit but did not appear. The defendant filed a general demurrer to the writ and declaration which was overruled and the declaration adjudged sufficient, to which the defendant excepted.
The only objection urged under the demurrer is that the defendant company was in possession of this railroad and operating the same as receiver and manager under the order and appointment of the Court of Chancery, and the declaration does not allege that leave was obtained of that court to bring this suit, therefore the County Court had no jurisdiction. The case of Lyman against this same defendant lately decided, 59 Vt. 167, is full authority and controlling against the defendant on this point.
The County Court having adjudged the declaration sufficient, the cause went to trial by jury and further exceptions were taken.
This suit was based upon section 3383 of the Revised Laws, which was first enacted in 1852 and 1855, and after the act of incorporation of the Vermont Central railroad company and after its railroad was built across the highway in question. Contrary to the defendant's requests the court charged the jury that notwithstanding the charter of the railroad company was prior and was exempt from amendment and repeal the enactment now incorporated in section 3383 R. L. was competent, applicable, and controlling upon the railroad company and did not infringe any of the chartered rights of the company, and that it applied to what constituted the railroad crossing as a whole although not wholly within the limits of the railroad land. To this ruling the defendant excepted.
The railroad land at this point was six rods wide. The track was six feet above the grade of the highway before the railroad was built, and in constructing the approaches on the highway to the crossing the embankment or fill extended beyond the limit of the railroad land and the injury to the traveller occurred on this fill about thirty-five feet outside the surveyed limits.
The charter of this railroad company was granted in 1843, before any railroads had been built in the State; but highways existed everywhere, and the statutes of the State then and ever since required them to be good and sufficient, and until recently made the towns respectively liable for special damages occurring to travellers by reason of their insufficiency.
The general rule is, that where a railroad company is authorized to cross highways, it is under a legal duty to construct its road across them in a reasonable manner, with reference to the double use of the crossing for its own purposes, and for travellers upon the highways; that is, the right is subject to the principle of law which is so universal as to have become a maxim, Sic utere tuo ut alienum non laedas. Pierce on Railroads, p. 243, and cases there cited.
Section 10 of this charter conferred the right upon the company to build the railroad across highways provided it restored the highway thus intersected as near as practicable to its former state and usefulness, to the acceptance of the selectmen of the town, or, in case of their refusal, to the acceptance of the commissioners provided in the charter. Presumably this highway, before it was interfered with by the building of the crossing, was such as the statute required, viz.: good and sufficient.
Therefore in order to restore the highway at this crossing to its former state and usefulness as near as practicable, it was necessary to make it good and sufficient. Prior to the crossing the land was level; hence no railings were required. The highway was left by the company defective, not "good and sufficient," not in its former state and usefulness as near as practicable, by not putting railings along the sides of the embankment. Therefore, the company failed in its primary duty under the charter.
Neither the selectmen nor the commissioners ever accepted the crossing.
It is plain that the company's duty did not end at the line of its land, if the highway could not be made good and sufficient without extending the fill of the crossing further. A crossing that could not be used in ordinary travel on the highway without the embankment or fill constituting the approaches being extended beyond the railroad land, would not be, without such extension, such a crossing as the law required. With such a defective crossing the highway would not be restored to its former state and usefulness. It would not be good and sufficient.
There is no reason why a town should be put to expense to build the approaches to a crossing. It receives no compensation for the right to cross.
We further think that the word crossing, as applied to the intersection of a common highway and a railroad and as used in the statutes, means the entire structure,...
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