Tuscaloosa County v. Alabama Great Southern R. Co.

• Decision Date: 05 October 1933
• Docket Number: 6 Div. 345.
• Citation: 227 Ala. 428,150 So. 328
• Parties: TUSCALOOSA COUNTY v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

150 So. 328

227 Ala. 428

TUSCALOOSA COUNTY v. ALABAMA GREAT SOUTHERN R. CO.

6 Div. 345.

Supreme Court of Alabama

October 5, 1933

Rehearing Denied Nov. 2, 1933.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by Tuscaloosa County against the Alabama Great Southern Railroad Company, to recover the amount expended by plaintiff in constructing a bridge over the tracks of defendant. From a judgment granting defendant's motion for a new trial plaintiff appeals.

Affirmed.

Foster Rice & Foster and J. G. Madison, all of Tuscaloosa, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

GARDNER Justice.

The location of the United States Veterans' Hospital some five miles north of Tuscaloosa increased traffic to such an extent, in the opinion of the board of revenue of Tuscaloosa county, as to necessitate a change of location of what is known as the Loop road, a public highway, where it crossed the tracks of the Alabama Great Southern Railroad Company at Box Springs cut. To this end the county instituted condemnation proceedings for the right of way and demanded of the railroad that it construct, at its own expense, a bridge over its tracks where the new road crossed. This the railroad declined to do, and the county proceeded to construct the bridge at a cost of $4,585.31, and institutes this suit to recover the sum so expended from the railroad upon the theory that the duty of such construction rested upon the road.

While plaintiff offered evidence tending to show the inadequacy for present traffic purposes of the old road and bridge over the railroad crossing, yet a new highway was laid out and a new bridge demanded of the defendant and constructed by plaintiff at a different location, all with the intention that the old way would be abandoned. So much is said in answer to citation by appellant of Mobile & Great R. Co. v. Commissioners' Court of Pike County, 97 Ala. 105, 11 So. 732, where was involved section 1581, Code of 1886, the essential provisions of which are embraced in section 7027, Code 1923.

Except, therefore, as showing good reason for the county's action in the premises, the evidence as to the old road can have no material effect upon the legal question presented here, and the case is to be viewed as one disclosing the establishment of a new highway and a new crossing of the railroad.

It is insisted by appellant that the duty of constructing this overhead bridge rested upon the railroad under the principles of the common law, and there are expressions in the case of State ex rel. City of Minneapolis v. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380, 108 N.W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, 8 Ann. Cas. 1047, which sustain this view. But, as suggested by the court in Chicago, R.I. & P. Ry. Co. v. People, 69 Colo. 266, 193 P. 668, the Minnesota case rested in the main upon a construction of the charter provisions of the railroad, and not upon a common-law duty.

We find, upon investigation, that the common-law rule stated by the Massachusetts court in Boston, etc., R. Co. v. Cambridge, 159 Mass. 283, 34 N.E. 382, 383, is sustained by the authorities generally, as follows: "But at common law the crossing of a new way with one already in use must be made with the least possible injury to the old way, and whatever structures are necessary must be erected and maintained at the expense of the party making the new way, and if the old way cannot be crossed without damage the damage must be ascertained and paid."

And the above-noted principle of the common law was stated in reference to the crossing of a railroad with a public highway, and was restated and applied by the following courts under like circumstances: Northern Central Ry. Co. v. Mayor, etc., 46 Md. 425; State v. Wilmington & Weldon R. R. Co., 74 N.C. 143; Chicago, R.I. & P. Ry. Co. v. People, supra; Town of O'Fallon v. Ohio & Miss. Ry. Co., 45 Ill.App. 572; Louisville & N. R. Co. v. Hopkins County, 153 Ky. 718, 156 S.W. 379; City of Albia v. Chicago, B. & Q. Ry. Co., 102 Iowa, 624, 71 N.W. 541; Rock Creek Township v. St. Joseph & G. I. R. Co., 43 Kan. 543, 23 P. 585.

And in 33 Cyc. 285 is the statement of the text, with citation of authorities, that: "In the absence of statute a railroad company cannot be required to construct and maintain crossings where a street or highway is made across its right of way after the construction of the railroad, there being no common law duty on the part of the railroad company in such cases to construct crossings or bridges or approaches thereto." See, also, 51 Corpus Juris, 669, to like effect.

As to the correctness of the statement of the common-law principle made by the Massachusetts court in the Cambridge Case, supra, we find no conflicting decisions, and, indeed, we read the opinion of the Minnesota case as giving recognition thereto, but declining to make it applicable to railroads. The reasoning, however, of that authority would not lead to placing such a duty upon the railroad as one arising from the common law, but merely as refusing to give recognition to the common-law principle as applicable to railroads.

What was said as applicable to the question here presented by the writer of the opinion in City of Birmingham v. Louisville & Nashville R. R. Co., 216 Ala. 178, 112 So. 742, did not meet the approval of a majority of the court, nor was the approval thereof by the writer of the opinion in Gulf, Mobile & N. R. Co. v. Pistole, 218 Ala. 695, 120 So. 159 (likewise the writer here) accepted by the court, and therefore these cases contain no authoritative statement which would lend color to appellant's insistence.

A further study of the Minnesota case, above noted, has persuaded the writer that the statement therein as to any common-law duty upon the railroad was erroneous and unsupported by the authorities and that the cases discussed in the opinion disclose that they rested upon statutory authority and not the common law.

This court has held that if a railroad constructs its road across a public road or highway, the duty (which is a continuous one) devolves upon it to put and keep the approaches and crossings in proper repair for the use of the traveling public, and that this is a common-law burden. Southern Ry. Co. v. Morris, 143 Ala. 628, 42 So. 17. And so it is a common-law burden as to highways in existence when the railroad was constructed, as was the case there considered.

But the authorities herein cited tend to demonstrate that, applying the same common-law principle to a situation where the highway is established after the construction of the railroad, the burden is upon those establishing the new way and not upon the railroad. Indeed, it has been held by some authorities that a railroad cannot constitutionally be so required by statute, without compensation, but the great weight of authority and sound reasoning as well is to the contrary, as pointed out by the Minnesota court in State ex rel. Minneapolis v. St. Paul, M. & M. R. Co., supra, and by the United States Supreme Court in Northern Pacific Ry. Co. v. State of Minnesota ex rel. City of Duluth, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630. Such statutes are in the interest of public safety and a proper exercise of the police power, which is continuing in its nature. Northern Pacific Ry. Co. v. State of Minnesota ex rel. City of Duluth, supra.

It follows, therefore, as our conclusion, that the duty to construct the overhead bridge in question cannot be rested upon common-law principle. But it is urged that the duty to so construct the bridge may be rested upon the statute (section 7027, Code 1923), and upon the charter provisions of defendant's predecessor as found in Gen. Acts 1853-54, p. 270.

There are authorities to the effect that language of similar import as found in these statutes is properly to be construed as having reference to highways in existence at the time of the construction of the road and not to those subsequently established. West Jersey & Seashore R. R. Co. v. City of Woodbury, 80 N. J. Eq. 412, 84 A. 1047; Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418, 72 N.W. 1118; Railway Co. v. City of Troy, 68 Ohio St. 510, 67 N.E. 1051; State v. Wilmington, etc., R. Co., 74 N.C. 143. And there are other courts that construe similar language as applicable only to grade crossings, and we think this represents the better view and one more in harmony with the legislative intent. City of Albia v. C., B. & Q. Ry. Co., 102 Iowa, 624, 71 N.W. 541, 543; Louisville & N. R. R. Co. v. Hopkins County, 153 Ky. 718, 156 S.W. 379, 381; Chicago, R.I. & P. R. Co. v. People, 69 Colo. 266, 193 P. 668.

In construing these provisions...