Sherwood v. Town of Weston

Hinman, J. The jury having found, in this case, that the injury complained of was received in consequence of the bridge being out of repair, as claimed by the plaintiff, the question now is, whether it appears from the facts found by the jury and shown in the motion, that the town is liable for it. It is insisted by the defendants, that the town of Weston is not liable, first, because this is not a bridge, or any part of a road or highway, which that town is by law bound to maintain ; and, secondly, because the Fairfield, County Turnpike Company are bound to maintain it. ■ First, then, is the town liable to maintain the bridge, provided no other person or corporation is shown to be so ? Or — 43 — rather, is the town liable, provided the Fairfield County Turn-4 J pike Company is not ? The 1st section of the statute referred to, (Slat. ed. 1838. p. 337.) throws upon the towns the burden of maintaining all necessary highways, roads and bridges, within their limits, which do not belong to any other person or corporation to maintain and keep in repair. Was this a “ necessary bridge,” within the meaning of this statute 1 By a necessary highway or road, as the term is here used, we suppose is meant one which has been established by lawful authority, so that the public have an easement over it, and a right to use it for the purposes of travel: and if the bridge in question, makes part of such public road, it is a “necessary bridge,” within the meaning of this statute ; and its necessity is sufficiently shown, when it appears that it is a public bridge, and devoted to the public use as such. Laying out of view, then, for the present, the question as to the liability of the Fairfield County Turnpike Company for this injury, and the facts stated in the motion, so far as they are important to show the liability of the town, are, that previous to 1797, the bridge made part of the old road leading from Fairfield, through Weston and Reading, to Banbury; and being in the town of Weston, that town was then liable to maintain it; that in the year 1797, the Fairfield, Weston and Reading Turnpike Company was incorporated, and that part of said old road which includes the bridge, became a part of that company’s turnpike road, and so remained until 1838, when the charter of that corporation was repealed ; since which time, the town of Weston have maintained such parts of the road of that company as are within the limits of the town ; consequently, they have maintained the bridge in question. On the repeal of the charter of this company, the legislature did not intend to discontinue, as a public way, any part of the road which had before been maintained by that corporation. So far is this from the fact, that it is expressly provided in the repealing resolution, “that the said road shall hereafter be a free public highway; and the towns of Weston, Reading and Danbury shall maintain and keep in repair such portions of it as are situated within their respective limits, with the exception of such part thereof as is included in the limits of the Fairfield County turnpike road.” The bridge, being in the town of Weston, it is obvious, that it — 44 — must have been left, by this resolution, either a free public -highway, with the liability to repair it thrown upon the town; or it must have been a part, actual or legal, of the road of the Fairfield County Turnpike Company ; and in either event, it is equally clear, that it was not the intention of the legislature to discontinue it as a public way. If it was not a part of that company’s road, it was the intention that it should be supported by the town, as a common highway. If it was within the limits of that company’s road, then it was the intention to leave the burden of maintaining it to that corporation ; and in this respect, it could make no difference, whether it was within the legal limits of the Fairfield County turnpike road, or not. If it was within its actual limits, or was supposed to be so by the legislature, it is equally clear, that it was not the intention to discontinue it as a public way. Again, it was not the object of the exception in the resolution of 1838, to define or extend the limits of the Fairfield County turnpike road ; or to sanction or legalize a laying-out, which was not authorized by their charter, or to exempt the town from liability to repair any part of the road, which it was provided should remain open for public accommodation. The exception, therefore, cannot be so construed as to affect, in any way, the liability of the Fairfield County Turnpike Company. That company was no party to, and had no notice of, the proceeding before the legislature; and we cannot be so disrespectful to that body as to suppose they could have intended to affect their rights or liabilities, by any proceedings relating to another corporation in which they had no interest or concern. What then was the effect of the repeal of the charter of the Fairfield, Reading and Weston Turnpike Company upon the liability of Weston to maintain this bridge, without, at the same time, discontinuing their road as a public way l To determine this, we do not think it at all necessary to enter into the question, as to the effect of repealing the charter of a turnpike company whose road had never been supported by the towns as a common highway. In such a case even, if as We suppose, it is competent for the legislature directly to lay out, establish, or discontinue highways at pleasure, and there was such a provision in the repealing resolution, as there is in this case, in the resolution of 1838, it would seem that the — 45 — burden of maintaining, as a common highway, the discontinued turnpike road, would be thrown upon the towns within whose limits it lay. But we do not put the case upon this ground; because we think, that the incorporation and organization of the Fairfield, Reading and Weston Turnpike Company had no other effect upon the liability of the towns to maintain the old road, as it previously existed, than to suspend that liability during the existence of the corporation. When a highway is once established, it remains a highway until discontinued. The legislature may discontinue it; ( Wales v. Stetson, 2 Mass. R. 143.) and if it becomes useless, in consequence of the laying-out of a turnpike road, that is a good cause of discontinuance. Commonwealth v. Roxbury, 8 Mass. R. 457. And if there is any thing in the charter, or in any alteration of it, to show an intention to discontinue it, courts would give such intention full effect. Hence, during the existence of the corporation in this case, the liability of the towns to maintain this road was suspended, or what is the same thing, the highway, as a town highway, was discontinued for the time ; because it is apparent, that the legislature could not have intended, that a liability to repair the same road should rest upon the towns and the turnpike company, at the same time. But this was not such a discontinuance as to take away or destroy, on the repeal of the charter, the right of way which the public had acquired, and discharge the land of the easement; and the reason is, because there has been nothing to show that such was the intention of the legislature: on the contrary, the resolution of 1838, shows a manifest intention that it should remain a public road. Had the corporation been created for a term of years, instead of an unlimited period, we do not suppose the old highway would have been so discontinued that it would not revive again, on the expiration of the charter. During the existence of the corporation, the liability of the towns would cease, or rather, would be transferred from the towns to the turnpike company ; but would revive again, when the corporation expired. But if such would be the effect in the case of a charter limited for a term of years, the same effect ought to follow in the case of the repeal of an unlimited charter, provided there is the same —reason for it. Assuming, then, that there is a highway, of which the — 46 — bridge in question forms a part, it follows, of course, that the - town of Weston must maintain it, unless it is shown to belong to some other person or corporation to do so. Have the defendants shown, that it belongs to the Fairfield County Turnpike Company to do this ? Here, a question arises upon the charter of this company. Does this authorize the laying-out and establishing another turnpike over ground covered by the road of the Fairfield, Reading and Weston Turnpike Company ? This charter, which was granted in 1834, four years before the Fairfield, Reading and Weston Turnpike Company’s charter was repealed, authorized the committee to survey and lay out a road, “ running the same from the Northerly end of the Black-Rock and Weston Turnpike, on the old road, to a convenient point Northerly of the dwelling-house of Jesse Wakeman in said Weston.” Now, in looking at the then existing state of things, for the purpose of determining where, by these words, the legislature directed or authorized this last turnpike road to be constructed, we find, that there was in fact a few miles of the old Danbury and Fairfield road left here, not covered by any other road, with the dwelling-house of Jesse Wakeman upon it; and that its Southern termination was the Northerly end of the Black-Rock and Weston turnpike road, where the new turnpike road was to commence, and its Northern termination was the Southerly end of the Fairfield, Reading and Weston turnpike road, some distance North of said Wake-man’s dwelling-house. Under these circumstances, the committee, in surveying the new turnpike road, are directed to commence at the Southerly termination of this piece of old road, or, what is the same thing, at the Northerly end of the Black-Rock and Weston turnpike road, and run up, on the old road, to a convenient point, Northerly of the dwelling-house of said Wakeman; and there they are to diverge so as to go to Newtown. This, we think, did not authorize the committee to lay the new turnpike road on the ground covered by the old one. It confined them to the old road, and fixed the point from which they were to diverge, on this old road, and North of said Wakeman’s. And as the bridge in question was still North of this, on the Fairfield, Reading and Weston turnpike road, they therefore had no right to extend the new turnpike road over it. — 47 — But to this it was said, that it was all “ old road” from Fair-field. to Danbury, and had been so from some time previous to-1797. That there was, anciently, an old road from Fairfield to Danbury, which has ever been a public travelled way, is true. But it is also true, that most of it, indeed all of it, we believe, except the little piece upon which this turnpike road was directed to be laid, had, for many years, been converted into one or the other of the turnpike roads, which, we have seen, terminated upon it; and after it had become turnpike road, it was as distinguishable, in common acceptation, from the old road, as applied to that part of it not converted into turnpike road, as are any other two different objects which bear a like resemblance to each other. Had any one acquainted with these localities been asked, where Mr. Wake-man resided, the answer might, and probably would have been, upon the old road; but if inquired of, where the bridge in question was situated, the answer would have pointed to the turnpike road, of which it made a part. The legislature doubtless used the words in their common and ordinary acceptation. We see nothing to show that any thing different was intended ; and unless there is some reason for so doing) we cannot construe them in any other thap their common and popular sense. The legislature, then, did not intend, that the new road should be laid on ground covered by the road of another turnpike company. There was no reason why it should be. There was then in existence a corporation having the same powers, subject to the same liabilities, in regard to the road, which the new company would have and be subject to, if permitted to extend their road over it. And while we do not feel called upon to deny the power of the legislature to authorize the new corporation to extend their road over another turnpike road, upon making a just compensation ; yet, we do feel authorized to say, that in a case where no reason exists for it, the taking of a part of the franchise of one turnpike company, and converting it to the use of another company, having the same general objects, and accomplishing them by the same of similar means, without any increase to the facilities of the public travel, or the means of accommodating it, will not be presumed. We should require language free from ambiguity, before we should be authorized to sayf that the legislature had been engaged in such needless, not to — 48 — say trifling legislation, as the incorporation of two turnpike companies for the purpose of maintaining the same road. But again, it is said, that inasmuch as the committee did in fact lay the new turnpike road over that portion of the former one where this bridge was; and as their report was returned to and accepted by the county court; it thereby became a part of the new turnpike road, irrespective of the authority conferred by the charter. The charter of the new company, after providing for the surveying and laying-out of their road by the committee, and the report of the proceedings to the county court, then directs, that “said court shall accept said report, unless it be made to appear, that said committee have not given the notice above required, or have acted corruptly, or have made mistakes upon their own principles, which mistakes said court may correct. We do not see in this, any power given to the county court to dispense with the requirements of the charter in regard to the location of the road. No doubt the county court might have rejected the report for not conforming to the required location ; and had the difficulty now discovered been brought to the notice of the court, we have no hesitation in saying, that it would have been its duty to see that the migtake was corrected before accepting the report. But this did not authorize that court, or any other, to dispense with the requirements of the charter, in regard to the location of the road. The road was directed to be run from a a point in Weston to another point in Brookfield. Could the county court, by accepting such a report, have legalized a laying-out, under this charter, of a road running from Fair-field to Stratford, or between any other two towns in the state 1 If this could not be done, because the charter does not authorize it; neither does it authorize the laying of the road on ground covered by another turnpike; and the acceptance of the report by the county court, could have no greater efficacy in the one case than in the other. If this laying-out could be legalized, by the acceptance of the report, we do not see why the laying of a road in any part of the state, might not, upon the same principle, be legalized. But no such authority as this was conferred upon the county court; and the action of that court, therefore, is of no validity, as to so much of the road as was laid upon ground not authorized by the charter. Fules v. Whiting, 7 Pick. 230. — 49 — But there is another difficulty, which is also fatal to the claim that the Fairfield County Turnpike Company was to maintain this bridge. An examination of the motion will show, that this company has never done a single corporate act on any part of their surveyed road South of Ryan’s mill. There was indeed a vote, passed at the first meeting of the company, in May, 1835, soon after the acceptance of the survey of the road, by the county court, but before any thing had been done towards working or opening it for public trave^ “ that the company assume the road as laid out by the committee, agreeable to the charter.” And the defendants insist, that this is such an assumption of the road as releases the town from all liability in regard to it, and casts it upon this corporation. The time when this vote was passed, before any thing had been done towards making a road, shows, that it was intended for nothing more than a mere acceptance of the charter and of the road as laid agreeable to it; and perhaps, an agreement that the company would, in a reasonable time, make and open the road in conformity to the laying-out. Such an assumption does not make the company liable for damages incurred in consequence ofits not being kept in repair. It might, and probably would, subject the company to indictment or information, if they did not make the road in a reasonable time thereafter; but it is not opening the road for the purpose of accommodating the public with a way. In Bliss v. Deerfield, 13 Pick. 102. it was decided, that a town is liable for an injury occasioned by a defect in a highway, from the time when it is opened for public travel. And again, in Drury v. Worcester, 21 Pick. 44. the same principle is recognized ; and the court say, that “ whenever they suffer a highway to be opened for public use, and to be actually used by the public, the town becomes responsible for its safe condition.” This, we think, a much more reasonable rule, than that contended for by the defendants; which would subject the company to damages for an injury incurred in passing through enclosed fields, before a single act had been done towards making the road : and we do not feel authorized to adopt a rule, which, in many cases, would exonerate towns, and leave for a time no responsibility any where, either for the non-repair of the road, or for damages incurred in consequence thereof. — 50 — This view of the subject is confirmed, by a reference to the charter of this company. It is provided, in one part of the charter, that, the damages assessed to individuals, through whose lands the road should be laid, should be paid, before the company would be authorized to make the road. And again, it was only after the road should have been made and put in repair to the acceptance of the commissioners, that it was made lawful for the company to erect toll-gates.” Surely, the legislature did not intend to establish a mere paper turnpike road, and subject the company to damages for injuries accrued before it could be put in repair, or toll-gates could be erected. Such a turnpike road could answer no other purpose than to shield towns from liability to repair such parts of their common highways as it might pass over. Nor was it intended to leave a mere paper responsibility upon a partially organized corporation, never to be fruitful in any thing but injuries to travellers having occasion to pass over it. But it was not intended, by the statute relating to highways, that a responsibility should not somewhere exist for injuries caused in consequence of defects in all our roads. Again, it is said, that the opening for public travel of the North end of the new turnpike road and establishing a tollgate thereon, makes the company liable for the whole road. If that part of the road, as surveyed, which lay between and connected this bridge with the turnpike at and above Ryan’s mill, had been worked and opened, so as to have found a traveled way through the whole extent of the new turnpike road, there would have been some foundation in this claim. At any rate, it would have presented a fair question for the jury, whether the company had not, in fact, opened for public travel their whole road, though nothing had been done upon that part of it which was old highway. But, when we find, that not a single corporate act has been done on any part of the surveyed road South of Ryan’s mill ; and that a large part of it, next to said mill, by which this old highway is connected with that part of the new turnpike road which has been worked, is mw included in enclosed fields, with nothing done towards making or opening it as a road ; we see no foundation for any question for the jury upon this part of the case, even had the defendants claimed that the new company had opened their whole road, and asked the court to submit — 51 — that question to them, which they do not appear to have done. Besides, by the resolution of 1838, (Priv. Stat. 1265.) the company were authorized to erect one whole or two half gates on the North part of their turnpike road, whenever it was made from its Northern termination to the Newtown and Norwalk turnpike road; and when it was made from that point to the Fairfield, Reading and Weston turnpike, they had the right to erect one other whole or two half gates on the Southern part of it. By thjs resolution, therefore, the turnpike road was in fact divided into two parts ; and it might well be, that the company, having complied with the requirements of their charter in regard to the Northern part, and having opened that part for public travel, they would have a right, by the terms of this resolution, to erect toll gates on it; and would also be liable for damages incurred in consequence of its not being kept in repair, when they would not be, upon the Southern part of their road. The court below admitted evidence to show, that ever since the repeal of the Fairfield, Reading and Weston Turnpike Company's charter, in 1838, the town of Weston had maintained and kept in repair the bridge in question, and that part of said company’s turnpike road, which was within their limits. We see nothing objectionable in this. It has been long settled, that the existence of a highway may be proved by immemorial usage, or by dedication of the road to the public use, as well as by the record of the original laying-out. 2 Greenl. Ev. sec. 622. and authorities cited. And in the case of proof of a road by dedication, not only the dedication must be shown, but also the acceptance of the road on the part oí the public, lb And we know of no more satisfactory proof of such acceptance, where there is no record evidence of it, than the fact that the public have worked and kept the road in repair, and constantly traveled over it as a way. We believe this is the ordinary proof resorted to, in such cases. In 2 Stark. Ev. p. 381. (ed. of 1834.) it is said, that proof of the repair of a road by a parish, is strong evidence to show, that it is a public highway. And in Rex v. Wandsworth, 2 B. & Ald. 63. which was an indictment against the parish, for neglecting to repair a highway, and the only evidence that any — 52 — such highway existed, was the fact, that the parishioners had used it for carting gravel from pits on Wandsworth common *, and one of the parishioners had turned an arch over a slough, and another had for eleven years compounded his statute duty by repairing apart of it; though the jury found a verdict for the defendants, yet the court, thinking the verdict against the weight of evidence, stayed the proceedings, in order to prevent the judgment being used as evidence in another prosecution against the parish. And Lord Ellenhorough said, that had the question depended on the evidence of user of the road, he should have been unwilling to grant the indulgence ; but inasmuch as there was evidence of both user of it as a highway and also of repairs, the indulgence was granted. The repair of the road by the town, shows, that they recognized their liability, and put the same construction upon the resolution of 1838, that we have put upon it. It was claimed, that the court erred, in rejecting the evidence offered by the defendants, to show that the repairs made by the town, were made under a mistaken impressions that the burden of maintaining the road had been imposed upon the town by the resolution of 1838. If the views we have taken, in regard to the effect of the repeal of the first turnpike charter, are correct, the evidence, if admitted, only shows, that the officers of the town, instead of committing any mistake, took the same view of the liability of the town, which we have taken ; and in any event, therefore, the evidence was wholly immaterial. Upon the whole, then, we do not see, that any error intervened on the trial below ; and we do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.