Shattuck

Peters, C. J.

The following facts appear, either expressly or by implication, in the case : In 1879 certain persons besought the legislature to be incorporated as the Elliot Bridge Company, with the right to erect a toll-bridge over the river which is the boundary line, at South Berwick, between Maine and New Hampshire, The inhabitants of South Berwick opposed the granting of the charter, evidently upon the ground that, if the bridge should be built, it might impose a burden upon that town of constructing a new road, or reconstructing an old one, from the bridge through their town to or towards York Beach. In order to appease South Berwick’s opposition to the charter, the petitioners to the legislature assented, by way of compromise, to annex to the charter prayed for the following condition, viz : "Provided no way shall, at any time hereafter, be located, or existing way altered, leading from said bridge towards York Beach, within the town of South Berwick, which shall he for the necessary convenience of said company, unless the entire cost and expense of building and maintaining such new way, or altering such way, shall be defrayed by said company during the continuance and maintenance of said toll-bridge.” The charter obtained and the bridge built, a petition goes to the county commissioners for the very alteration of the road contemplated by the movers of the above proviso.- The commissioners refused alteration; and a committee, appointed upon an appeal to this court, recommend and allow the alteration asked for. The report of the committee is held in abeyance because, among other reasons, the bridge company had no notice to be heard before the commissioners or committee. The case is reported to us for such action as will best preserve the rights of all parties.

Supposing the petition to be sent back either to the commissioners or the committee, the first question would be, we think, to decide whether the new road is or not required by common convenience and necessity, irrespective of its necessity and convenience to the bridge company. In other words, is the new road demanded for the convenience and necessities of the general public, excluding the company, its convenience and necessities, its wants or advantages, wholly from the calculation. If so, then the road should be laid out for and be built by the public. In deciding this question, the position of things is not to be considered as if no bridge were there. But the bridge being there, and the public using it, is the general community — not including the bridge company as any part thereof — to be accommodated by the proposed alteration of road, to such an extent as to make the new road a public convenience and necessity. The legislature could not have intended to take from the public their right of having a new road located. But it did intend that if the general public did not need the road, they should not be taxed to build one for the benefit merely of the bridge company. And the community should not be deprived of the road, if of public convenience and necessity to them, although it would at the same time be of advantage also to the company.

If, however, the new way is not demanded for the convenience and necessities of the general public, excluding the wants and interests of the bridge company wholly from the calculation, then is the way demanded by such convenience and necessity, by including their wants and interests in the calculation. If so, then the road will be of common convenience and necessity, within the meaning of the act of incorporation, only or mainly because of its "necessary convenience” to the company. And, in such case, the company should bear the expense of building and maintaining the road.

In this view of the matter, we think the report should be recommitted to the committee, with special instruction. There is no occasion to go back of the committee to the commissioners. They have already decided against the road, and the question now is whether their decision shall be sustained or reversed.

The committee must determine either, (1), that the way would not be of common convenience and necessity, and thereby affirm the doings of the commissioners; or, (2), that it would be of such convenience and necessity, and in that case, the bridge company would be relieved from all obligations of building or repairing the way; or (3), that the way would be of common convenience and necessity because of its convenience and necessity to the bridge company, and not otherwise. In the latter case, the road-alteration can be established only upon some provision that will impose the expenses of constructing and repairing it upon the company.

Here, then, comes an embarrassing question. How can the bridge company, if the road be laid out for their benefit, be made responsible for the expenses ? We can see but one practicable way. The committee’s report may be conditional. The court at nisiprius can refuse to accept the same, or to allow it to become operative, until the company shall first pay or secure to the town of South Berwick a sum of money, which shall be determined by the court to be. a fair indemnity for the town against its liabilities on account of the laying out in that town, during the continuance and maintenance of the bridge; or the court may accept an indemnity for the town in other form, if assented to by the parties, or if deemed feasible by the court. While the settlement of that question would be largely left to the discretion of the sitting judge, the compensation or indemnity should precede the acceptance of the report. The machinery for laying out, mailing and repairing the way belongs to the state, and cannot be delegated to the company. The company should be notified to be present at the hearing of parties.

It will be seen, at a glance, that the statutory condition annexed to the act incorporating the bridge company, is an impracticable and awkward amendment. It should be considered whether it does not need legislative correction.

Report recommitted.

Walton, Yirghn, Llbbey and Symonds, JJ., concurred.