West Jersey & Seashore Railroad v. Township of Waterford

Grey, Y. 0.

The defence in this ease, so far as it attacks the character of the structure proposed to be erected by the complainant company to carry the public highway across its railroad tracks by an overhead bridge at Franklin avenue, proceeds upon a conjecture that the proposed bridge will be as bad as another bridge has been found to be, which the complainant previously erected at West Berlin. One of the defendants’ affidavits indicates that the consent of the township committee to the erection of overhead bridges was rescinded in order to compel the complainant company to malee the previously.-built bridge at West Berlin conveniently passable to travelers of the highway crossing that bridge—that is, the township committee say to the complainant company: “The overhead bridge you have erected at West Berlin is a nuisance; until you make that bridge satisfactory for public travel, you shall not erect any other overhead bridges in Waterford township.”

If the complainant company has erected an insufficient overhead bridge at West Berlin, it may be good reason why some legal procedure should be taken to compel the reformation of that bridge, but it is no reason for preventing the building of any other overhead bridge in the township. Each structure must stand upon its own merits. If any be defective in meeting the requirements of a lawful bridge, the proper authority may be invoked by proceedings for the correction of the defects of that particular structure.

The proposed bridge at Franklin avenue has not yet progressed sufficiently towards completion to indicate whether it will sufficiently carry the public highway across the railroad tracks. It would certainly be unreasonable to prevent its erection because it may possibly be insufficient unless the detail of its proposed finished construction were proven. No such proof is offered. Instead the defendants’ witnesses guess that it will be like another structure whose qualities they denounce.

The whole justification of the defendants’ interference preventing the construction of overhead bridges to carry the public roads across above the grade of railroad tracks is based upon the assumption that {lie township committee may lawfully prevent the complainant company from altering the grade of the public highways of the township so that they may be carried overhead across the railroad tracks.

The special acts incorporating those companies which were organized before the passage of the General Railroad act of 1873, contain clauses imposing upon those companies the dutjr to provide bridges to carry the public highways over or under the railroad tracks. The General Railroad act also contains such a clause applicable to companies incorporated under its provisions. Gen. Stat. p. 2661 § 84. The special charter of the Camden and Atlantic Railroad Company (P. L. of 1852 p. 268 § 9) makes it the duty of that company

“to construct and keep in repair good and sufficient .bridges or passages over or under the said railroad where any public or other road shall cross the same and to alter and grade the said roads so that passage of carriages, horses and cattle, passing and repassing, shall not be impeded thereby.”

A similar clause was the ninth section of the charter of the Central Railroad Company of New Jersey. P. L. of 1843 p. 133. The Central Railroad Company was indicted, in "Warren county, for obstructing a public street. It appeared that the street in question had formerly crossed over the surface of the railroad company’s tracks. The company altered the position of the highway in this respect, and passed it through a tunnel under its tracks. On the part of the state it was denied that the company had the power to make this alteration, and this denial formed the substantial fouirdation for the indictment.

The supremé court declared that the obligation imposed by the company’s charter was a continuing duty, which, in its performalice, must be measured by circumstances, and as an illustration stated this proposition: “Suppose a public street in a town had been originally laid over the surface of the railroad tracks, and that, by reason of the growth of the company's business in that locality, its trains should pass in such quick succession as to render the street almost impassable. Could it be pretended, under these circumstances, that the company could discharge itself from the obligation which the section in question imposed, except by passing the street thus obstructed under its road, so as to restore it to public use ?” The court declared that the duty prescribed was, at all times and under all circumstances, to keep the public highways at the points where they crossed the railroad in a condition fit for safe and convenient use, and that, in order to accomplish this end, the power to alter the grade of the road as public emergencies require, so as to pass it, if necessary, under the railroad tracks, must reside in the corporation. State v. Central Railroad Co., 3 Vr. 221.

It should be noted that the clause of the charter presently under consideration, that of the Camden' and Atlantic Railroad Company, under which the complainant company in this cause is operating, contains express words making it the duty of that company “to alter and grade" the public highways where they cross the railroad company's tracks, so that passing and repassing shall not be impeded. In the Central Railroad Case, above cited, those words are absent, but the court gave to that charter the same effect by construction. In the present case the duty of the railroad company to carry the road across its tracks off grade is explicitly declared in its charter.

The judgment above cited was made the basis of the decision of the case of Palmyra v. Pennsylvania Railroad Co., 17 Dick. Ch. Rep. 601, where all the cases on the subject are collated and compared. On appeal from that decision the court of appeals (18 Dick. Ch. Rep. 799) affirmed the decree of this court on the opinion here expressed. The ground of challenge in the present case, of the complainant's right to carry the highways across its tracks by an overhead bridge, is, in principle, the same as was set up and overruled in the case of State v. Central Railroad Co., above quoted. Neither court decisions nor statutory enactments have been cited on this argument which in any way justify the interference' by the township committee with the complainant company’s proposed improvements.

Some of the defendants’ affidavits do express the opinion that overhead bridges, carrying the highways across the railroad tracks above the grade of the latter, will be more dangerous to the traveling public than are crossings made at grade. This proposition seems to be so impossible of acceptation as to be unworthy of serious-consideration.

There is a plain showing in the complainant’s bill and affidavits that the nature of the business carried on over the company’s tracks, by trains traveling at the rate of seventy miles an hour, will be highly dangerous to- travelers who, on the highways, cross the tracks at grade. The proposition to relieve the public traveling the highways, or in the complainant company’s railroad cars, from the danger of grade collisions between the railroad company’s trains and teams traveling the highway and crossing at grade is entirely reasonable.

The expense of making and maintaining such overhead bridges must be assumed and carried by the railroad company, upon whom, by the statute, is imposed the continuing duty of maintaining such crossings.

No justification appears in the defendants’ answer or annexed affidavits for their interference with the exercise by the railroad company of its duty to carry the highways across its tracks without impeding the passage and repassage of carriages and passengers along the public highway.

A preliminary injunction- should be allowed restraining the defendants in accordance with the prayer of the bill of complaint.