Attorney General v. Proprietors of Deerfield River Bridge

Gray, J. The principal difficulty in this case has arisen out of the fact that the legislature, in the St. of 1868, o. 294, seems to have assumed that the date of the original opening of the bridge for passengers' was the 14th, when in fact it was the 8th of November 1798, and that the term of seventy years, for which tolls were granted and established thereon by the St. of 1797, e. 17, for the benefit of the defendants, accordingly ended on the 14th, instead of the 8th of November 1868. But upon a consideration of the provisions of the two statutes, of the allegations in the information, and of the facts found by the master, we are of opinion that this mistake affords no ground for refusing the relief asked for. Authority to file this information is expressly given to the attorney general, and jurisdiction of the same conferred upon this court as a court of chancery, by the St. of 1868, e. 294, § 3, if the bridge should not be in good, safe and convenient repair on the 14th of November 1868 ; and the master finds that the bridge was not in such repair at that date. It is unnecessary therefore to consider whether the case would have been within this statute if the bridge had ceased to be out of repair after the 8th, and before the 14th of November; or whether the information could have been sustained under the general equity jurisdiction of the court. See Attorney General v. Tudor Ice Co. 104 Mass. 239, and cases there cited. The St. of 1797, e. 17, § 4, required the defendants to keep the bridge in good, safe and passable repair for the term of seventy years from the 8th of November 1798, that is, until the 8th of [10] November 1868. The provision of the St. of 1868, o. 294, § 3, that nothing in this act contained shall be construed to release the defendants from their liability to keep the bridge in such repair up to the 14th of November, certainly did not exempt them from such liability before the 8th of November 1868 ; and is well described in the information as a provision that nothing in this act contained should be construed to release them from “ their liability to keep the said bridge in good, safe and passable repair up to the expiration of the term aforesaid,” which is stated in the next' preceding paragraph to be “ the term of seventy years from and after the day of the opening of said bridge for passengers.’' The further allegation that “ during the latter part of the term aforesaid the said bridge was not kept by said corporation in good, safe and passable repair, and was not in such repair at the end of said term,” would at least cover the period of a week before the end of the term. Neither the statement of this last date, under a videlicet, as the 14th of November, followed by a specification of the nature of the want of repair at this date, nor the previous statement, near the beginning of the information, of the date of the opening of the bridge as the 14th of November 1798, is a material variance, or can have misled or embarrassed the defendants. The master finds that the bridge was equally out of repair on the 8th and the 14th of November 1868, and that, this want of repair was of such a character that it must have existed for a much longer period of time than between these two dates. The evidence, admitted before the master, of the condition of the bridge on the 14th of November, was competent, not only as showing a strict compliance with the condition contained in the St. of 1868, o. 294, § 3, authorizing the filing of this information, but also as tending to show the condition of the bridge on the 8th of November. Under the provision of the St. of 1797, c. 17, § 3, that at the end of the term of seventy years the bridge should be disposed of by the government as the legislature should think proper, the legislature clearly had the power, by an act passed before the expiration of the term, to lay out the bridge as a public highway [11] to make no provision for its repair for a week afterwards, and then require it to be kept in repair by the town of Deerfield. The authority of the legislature to enforce through appropriate judicial proceedings the liability of the defendants under their charter to keep the bridge in repair until the end of the term was not lost or affected by adopting' other measures of precaution to have the bridge kept in repair afterwards for the safety and convenience of the public. Allowing, therefore, to the St. of 1868 the construction most favorable to the defendants, the subsequent repair of the bridge by the town under the obligation thus imposed upon them, while this suit has been pending, does not affect the extent of the defendants’ liability for their neglect to perform their own corporate duty, but only the appropriate form of relief. As the bridge has now been repaired, specific performance cannot be decreed against the defendants. But, according to the practice of courts of equity in cases where the specific relief originally prayed for becomes unsuitable by reason of new circumstances, damages may be awarded. And upon this information, filed at the relation of the selectmen and for the benefit of the town of Deerfield, the proper decree will be, that the defendants pay to the town the sum of §4000, assessed by the master as the expense of putting the bridge in good, safe and suitable repair at the time when the defendants failed to comply with their duty in this respect. Decree accordingly.