The law, which imposes the duty of erecting and maintaining bridges in a public highway over artificial watercourses, was stated by Chief Justice Parsons in the early case of Perley v. Chandler, 6 Mass. 454, 458: "If a highway be located over watercourses, either natural or artificial, the public cannot shut up these courses, but may make the road over them by the aid of bridges. But when a way has been located over private land, if the owner should afterwards open a watercourse across the way, it will be his duty at his own expense to make and keep in repair a way over the watercourse, for the convenience of the public.” “ This obligation upon the owner arises from the consideration that, when the way was located, the public were to be considered as purchasers of the easement, by the payment to the owner of all damages which he sustained in consequence of the easement; and among other causes of damage might be estimated the inconvenience of opening a watercourse at his own expense.”
The controversy in this case arises from the difficulty of applying these plain principles to the facts presented. The way in question was located upon the petition of the defendants, and was in fact an alteration of an old county road, made foi *22their accommodation, upon an agreement on their part to bear the whole expense. The corporation owned the land on .both sides of the old road, including the land where the new way was located, and at the time of the final location had made some progress towards the completion of a canal across the new road. This canal made the bridge in question necessary. The , work of building the new road and bridge was done by the defendants, under their agreement to be at the whole expense, and was carried on at the same time with the construction of the canal. But the bridge was completed before the water was let in.
Upon this state of facts, the court was requested substantially to rule that the defendants were not liable to support the bridge. We are of opinion that the request was rightly refused. It may be true, when a highway is located over land across which the owner, intending to make a beneficial use thereof, has commenced the construction of a watercourse, that the public easement must be subject to such prior appropriation, indicated by an actual commencement of the work; so that the original cost of the bridge and the burden of its future support will be on the public. In such case, the bridge should be ordered as a part of the original location and construction of the way. The difficulty is, that, under the peculiar circumstances of this case, the fact that there was a partial construction of the canal before the final location of the road is not decisive of an intention on the part of the defendants to make a prior appropriation so as to throw the burden of the bridge upon the public. The double position which they occupied, as builders of the road, under an agreement to be at the whole expense, and also landowners, having the right to compensation, and the use of the land subject to the public easement, takes away the otherwise significant character of the fact relied on. In determining what weight to give to it, the situation and conduct of the parties must be taken into consideration. In this way, we arrive at the real intention of the defendants. It is plain that the cost and support of a bridge, at the point in the old county road where it was crossed by this canal, would have been upon the defendants, if *23this alteration in the road had not been made. It is not to be supposed that they intended, by the change which they asked for, to escape this obligation. The location under which they constructed the road makes no mention of the bridge. There is nothing in the original transactions to show that it was not built by them under their obligation as landowners, and not as contractors or agents in the building of the road. And the fact that they have exercised ownership over it, and kept it in repair ever since, is strong evidence that it was built with the understanding that the legal obligation to maintain Avas upon them, because there had been no intended appropriation to the uses of a canal which took precedence of the location. The defendants’ original petition contained an assurance, in substance, that no additional burden should be put upon the public. Upon the whole, as this case was presented, there was no injustice done to the defendants by the instruction given to the jury upon this point.
The jury were further instructed that the plaintiffs were entitled to recover, although the repairs for which this suit was brought were all made within the limits which the Lowell Horse Railroad Company were bound by law to repair. Under the St. of 1866, c. 286, § 1, every street railroad is required to keep in repair, within certain limits, such portions of the streets, roads and bridges as are occupied by its tracks, to the satisfaction of the proper officer having charge of the streets or highways ; and is made liable over to the city or town, in case any recovery is had for any defect or want of repair, provided it has had notice and opportunity to assume the defence of the suit. The statute does not relieve the city from its obligation to keep the streets, over which a street railroad is located, safe and convenient for public travel. It authorizes, for the public benefit, the use of the highway for a peculiar mode of travel, on certain conditions. The city may enforce the performance of the conditions ; but all the provisions of the statute imply that the city is primarily liable for want of repair. It is not necessary to deciae whether its provisions make the railroad ultimately liable to the defendants. We are of opinion that it does not exon*24crate the defendants from their liability in the first instance to the city. As respects this liability, the bridge over the defendants’ canal remains a private structure, for the repair of which they are responsible directly to the city. Middlesex Railroad v Wakefield, 103 Mass. 261. The defendants have no just ground to complain of the instructions given on the point.
Exceptions overruled.