delivered the opinion of the court, February 19th 1883.
These cases were argued together. They present the same question of liability. The injuries were produced by the dangerous condition of the i’oad kept open by the township authorities. It is true the part in question was within the limits of the ground condemned by the Chester Creek Railroad Company, but outside of the portion actually occupied by the railroad. The track of the latter was on a lower grade than the wagon road. They were separated by a bank almost perpendicular, and about sixteen feet in height. The railroad was constructed some fifteen years ago. For many years the wagon road was protected by a guard or railing placed on the top of this bank by the township'authorities. It had been suffered to fall into decay for a few years prior to the injuries in these cases. During all this time the township had suffered the wagon road to remain open and to be used as a link in the public highway. It was of narrow width and unprotected on the side next to the railroad. ■ In thus maintaining this wagon-road as a public highway, the township held it out as such, and invited the public to so use it. It is now claimed that the township is not liable inasmuch as the railroad company should have reconstructed the public road forthwith on taking the old road. It is true the Act of 19th February 1849, does infpose such duty on the railroad company, and it was subject to indictment for omitting and neglecting so to do: Pittsburgh, Virginia & Charleston Railway Co. v. Common*326wealth, § Outerbridge 192. The same ease holds that the railroad company could be compelled by bill in equity to perform its duty in reconstructing, or the township might rebuild the road and collect the cost thereof from the corporation: Pennsylvania Railroad Co. v. Borough of Irwin, 4 Norris 336; Bean v. Howe, Id. 260.
If the township had ceased to recognize this portion of the road as a public highway and to invite its use as such; if it had erected any barrier whereby the public use thereof was denied or repudiated, the township might have been relieved from liability. The township officers could not of their own action alone, build another road on new ground, and the township is not liable by reason of their not doing so. The liability arises from their keeping open, using, and maintaining, as a public highway, this dangerous road. While the railroad company was derelict in the discharge of its duty, the township was also guilty of negligence, and liable to respond in damages to the persons injured by reason thereof.
Judgments affirmed in each case.