Goshen & Sharon Turnpike Co. v. Sears

Peters, J. The statute, on which this action is founded, subjects towns to the burthen of making and repairing all necessary roads within their respective limits, unless it belongs to some particular person, persons or corporation to make and repair the same ; and provides, that the town, person, &c. who ought to repair such road, shall pay just damages for all injuries received in body or estate, through, or by means of their neglect. Stat. 266. lit. 48. s. 1. 4. 5. This statute contains general regulations on this subject, but imposes no duty on the defendants, unless the facts alleged by the plaintiff evince, that it belongs to them to maintain and repair this road. [92] 1. It appears by the declaration, that in May 1803, the defendants were incorporated, by the legislature, by the name of The Goshen and Sharon Turnpike Company; and by that name to be known ; to sue and be sued, implead and be impleaded, in all courts of record ; to ordain and establish by-laws, necessary to carry into effect the object of their incorporation, viz. the construction of a public road from Torrington to the West line of the state, with power to erect gates and take toll thereon : That on the 1st of January, 1805, the defendants were legally formed into a company, for the purpose aforesaid : That on the 1st of January 1807, said road was completed, tollgates were erected, and the same have ever since belonged to the defendants, and they have constantly taken toll of travel-lers thereon. These facts have been found, by the jury ; and the question now is, do they bring the defendants within the purview of the statute ? It is contended, by the defendants, that these matters are not well pleaded ; that their charter, being a private act, ought to have been recited. The charter is certainly a private act; and is a contract between the state and the corporation. Dartmouth College v. Woodward, 4 Wheat. 518. It is a rule in pleading, that the plaintiff should declare on a contract according to its legal effect, and not on the evidence of the contract. Bacon v. Page, 1 Conn. Rep. 404. “ In general,” says Chitty, “ whatever circumstances are necessary to constitute the cause of complaint, or the ground of defence, must be stated in the pleadings, and all beyond is surplusage ; facts only are to be stated, and not arguments or inferences, or matter of law.” Courts will not ex officio take notice of private acts of the legislature ; and consequently, such parts of them as may be material to the action or defence, must be stated in pleading.” 1 Chitt. Plead. 218. 220 Rut, it is enough if they are counted upon, or the substance stated. The Middletown Bank v. Russ & al. 3 Conn. Rep. 135. 139 Hempstead v. Reed, 6 Conn Rep. 480. And they must be set out at least with certainty to a common intent. 3 Inst. 303. a. And if greater certainty were requisite, the defect is aided by verdict. Hendrick v. Seeley, 6 Conn. Rep. 176. Bartlett v. Crozier, 15 Johns. Rep. 250. 254. 1 Saund. 228. a. Archb. Dig. 115. And where the law presumes, that the knowledge of the facts is in the opposite party, less certainty is required ; because the principal object of pleading, is, to state facts, of which the opposite [93] party is supposed not to have knowledge. Thus, in an action of the case for not repairing a private road through the defendant’s close, the declaration stated, that the defendant, by reason of his possession, ought to have repaired ; and this was held sufficient, without shewing the right or obligation of the defendant to repair. Rider v. Smith, 3 Term Rep. 766. 1 Swift’s Dig. 600. 1 Chitt. Plead. 369. So, in Tenant v. Golding, 1 Salk. 21. 360. in an action on the case for not repairing a wall, debuit reparare was held sufficient. The necessity of reciting the charter, in an action like this, seems not to have occurred to the late Chief Justice, when compiling his Digest, as he has given us the form of a declaration merely counting on the statute by its title. 2 Swift’s Dig. 572. And a similar declaration, in Williams v. The Straits Turnpike Company, received the sanction of the superior court in Litchfield county, August term 1806 ; and such is understood to have been the practice. 2. Are the defendants bound to repair the road 1 They accepted the charter, made the road, erected gates and received toll of travellers thereon, for nearly twenty years. In Riddle v. The Proprietors of Locks and Canals on Merrimack River, 7 Mass. Rep. 169. a duty was imposed on the defendants in these words: “ The said proprietors shall erect, make and forever maintain such dams, canals and locks,” &c. By accepting this charter, it was held, the obligation became express and absolute. “ When the act of incorporation first passed,” said Parsons, Ch. J. (p. 184.) it was optional with the proprietors whether they would, or would not, take the benefit of it. But after they had made their election, by executing the powers granted, and claiming the toll, then the duties imposed to make canals, &c. attached.” In The Commonwealth v. The Worcester Turnpike Corporation, 3 Pick 326. the defendants were indicted for not repairing their road, and contended, that this part of the road had not been so made as to be accepted. The court said : “We do not think that the corporation can object, that this part of the road has never been so made as to be accepted. They have established their gates, and have taken toll for many years ; and part of the toll so taken is considered by law as a compensation for making this part of the road.” In Bartlett v. Crozier, 15 Johns. Rep. 250. the defendant, being an overseer of highways, was sued for neglecting to repair a bridge, whereby the plaintiff’s horse was injured. Spencer, J., in de [94] livering the opinion of the court, remarked (p. 255) that the pr¡nc¡p]e on which this action rests, was recognized, by this court, in Townsend v. The Susquehannah Turnpike Company, 6 Johns. Rep 90. That was an action,” continued he, “ founded on an injury done the plaintiff in the loss of a horse, by reason that one of the bridges of the corporation was so ruinous as to fall, when the plaintiff was crossing it with his horses. The court held, that the action was sustained, on the ground that the corporation was bound to bestow ordinary care in the construction and repair of their bridges. The duty of the corporation, in that case, was an implied one, resulting from their ownership of the road, and the reception of toll.” Vid Russell v. The Men of Devon, 2 Term Rep. 671. The Mayor of Lynn v. Turner, Cowp. 86. The case of Bartlett v. Crozier was indeed reversed, by the court of errors. But say the court : “ It is not like the case of an individual, bound by a private statute, or by a certain tenure, to keep a road or a bridge in repair ; nor like the case of turnpike companies There the duty is perfect, and binding at all times, and is founded on a valuable consideration.” 17 Johns. Rep. 439. 451. 3. But the defendants claim, that they are not responsible for this injury, for two reasons : 1st, Because at the date of their charter, towns and particular persons were bound to repair all roads, and liable for all injuries occasioned by their neglect. 2ndly, That the defects in the road were not the proximate cause of the plaintiff’s injury. The statute on which this action is founded, (Stat. tit. 29. p. 119. n. ed. 1808. p. 10. ed. 1702.) has been in force, substantially, for more than a century. The only apparent alteration is the insertion of the word “ corporation,” ex abundanti cautela, in the revision of 1821 But owners of public roads were always bound to repair them, and liable for damages occasioned by their neglect, as already shewn. Corporations are artificial persons, and, for certain purposes, are considered as natural ones ; e. g. they have been denominated occupiers of land, deemed inhabitants of cities, &c. and bound to repair bridges ralione tenurce suce terrarum. They have sued, and have been sued, as citizens. Rex v. Gardner, Cowp. 79. United States Bank v. Deveaux, 5 Cranch 61. The defendants claim, that the neglect of the defendants is not laid as the proximate cause of the plaintiff ⅛ injury. But it is laid and found, that it did not arise from the neglect, folly or [95] misfeasance of the plaintiff, or of Alpine Pierce; and that it was inevitable by them ; and that it did arise entirely from the neglect, folly and misfeasance of the defendants in making and repairing their road ; and it is a well settled principle, that he who does the first wrong, is responsible for the consequences. Scott v. Shepherd, 3 Wils. 403 Gibbons v. Pepper, 1 Ld. Raym. 38. Dodwell & ux. v. Burford, 1 Mod. 24. Bull. N. P. 26. I am, therefore of opinion, that there is nothing erroneous in the judgment complained of. The other Judges were of the same opinion, except Brain-ard, J. who was absent. Judgment affirmed.