Reed v. Town of Cornwall

Hinman, J. This was an action on the statute for an injury occasioned by a defective bridge, and the principal question was, whether the bridge was one which the defendant town was bound by law to maintain and keep in repair. There was no doubt that the bridge belonged to the defendants to keep in repair, unless it belonged to and was a part of the Warren Turnpike Company’s road, and belonged to the turnpike.company to maintain ; in which case it must of course be conceded that the town is not liable for an injury occasioned by its being out of repair, because our statute makes towns liable only in cases where no other person or corporation is liable to maintain and repair the road or bridge by the defect of which an injury is sustained. Rev. Stat., tit. 24, § 1. Sherwood v. Weston, 18 Conn., 32. It appeared that there was an ancient road at the place in question, which belonged to the town to maintain, and had been maintained by it up to 1806, but in that year the Warren Turnpike Company was chartered and organized, and from that time for a period of forty years that corporation repaired it and maintained toll gates upon it and treated it in all respects asa part of their road. In 1846 the turnpike company ceased to repair the road, took off all its gates therefrom, and from that time entirely abandoned it. It does not explicitly appear from the motion, but we suppose it to be the fact, that the only road in Cornwall ever main [55] tained by the turnpike company was this old highway; and as the charter of the company does not locate the road which the corporation were to build and maintain, and there did not appear to have been any survey or location of a turnpike by the corporation, unless it be assumed that the organization of the company, together with the taking this old highway into its control as a turnpike, was such a location, it might perhaps have been a proper question for the jury to pass upon, whether these circumstances, with the continued use of this old highway as a turnpike for forty years, was or was not a location of the turnpike under the charter, so as to make the corporation liable to maintain it. This question does not appear to have been made. The court however told the jury that if they found that the turnpike company used the road as a part of their road, repaired it, and collected toll of travelers upon it, the liability of the town to repair it and pay damages for injuries for defects therein, was suspended while the turnpike company continued to do these acts, or to exercise over it any act by virtue of their corporate rights; but that if they found that the turnpike company ceased to perform all of these acts, and abandoned theroad, and further found that the road was necessary for the public travel in Cornwall, and since its abandonment by the turnpike company the town had made the necessary repairs thereon, and the same had been all the time used as a public highway, then the defendants had adopted the road and were liable to keep it in repair, and were also liable for any injury arising from their negligence in this respect. Now whether it be assumed that the charge in respect to the liability of the turnpike company, while it continued to maintain the road as a part of its turnpike, is correct, or whether the proper course would have been to submit this as a question of fact, to the jury, to say whether the acts of the corporation under their charter were not a sufficient location of their turnpike road over this old highway, so as to exonerate the town from liability to repair, &e., can make no difference, for if either course was proper, then, as it might have been found and probably would have been found that [56] the turnpike company was once liable to repair this road, the question fairly arises whether this liability ceased when the turnpike company ceased to repair the road and abandoned it in the mode stated to the jury in the charge. The charter, as it appears in the private statutes, (2 Vol., p. 1479,) is very brief, and is probably susceptible of explanation by referring to the petition upon which it appears to have been granted, together with the action of the legislature upon it. A reference to the petition would probably show a location of the road by the action of the legislature ; and perhaps the power of the corporation to surrender the road to the public by merely ceasing to repair and abandoning the taking of toll might be shown. If the application was for a mere license to the petitioners to take an old highway into their control, and to be allowed to erect and maintain toll gates upon it for so long a period as they chose to keep it in repair, the charge might be correct. It has been suggested that some of the old turnpike charters were of this description. This, However, does not appear to be so upon the face of the resolution merely; and we have nothing else before us. If it is not a mere license of the sort indicated, it of course amounts to a permanent charter of a permanent corporation,, which alone had no power to dissolve itself. The circumstance that it cannot be determined by a mere inspection of the resolution where the road of the corporation was to be built or established, does not render the charter void. It has not been claimed that the legislature had not the power to charter a company with authority to build and maintain a turnpike road, leaving the corporation to locate it in some suitable place for the accommodation of the public. It is true this is not often done, in respect to turnpikes. But towns, cities and boroughs, have power to make ordinary highways and streets, and there can be no objection in principle to granting the same power to a turnpike corporation which does not apply to the authority which is exercised over this subject by these municipal corporations. A turnpike located, built, and opened for travel, by a corporation thus chartered, would possess all the incidents, in [57] respect to its being a public way, of any other turnpike; and the corporation would be under an equal liability to maintain and keep it in repair, and to pay damages for any negligence in this respect, which any other turnpike company is under in respect to its road. A reference to our private statutes will show that many of the old charters of turnpike companies were very brief, some of them perhaps as brief and indefinite as this, but no one has ever claimed them to be void on this account. Assuming then, as we must in this case, that the place in question was oncea turnpike, and that the corporation liable by law to keep it in good repair and to pay damages for its neglect to do so, has never been in any way dissolved, or its former liability shifted from it, the same liability must of necessity still continue; and as our statute makes the towns liable only in case there is no liability on any other person or corporation, it follows of course that the charge was wrong in making the liability of the turnpike company to depend upon its continuing to keep the road in repair and keep up its gates, &c. It was claimed that the late repairs of the road by the town operated to estop the town from claiming that it was not liable to maintain the road. We do not think so, for so long as there is a liability upon the turnpike corporation, there can, by our statute, be none upon the town. What the effect of a continued abandonment of all their corporate rights by the corporation for a long period might be, it is unnecessary to consider. If the abandonment had been for a period sufficient to justifythe presumption that the charter had, in some way, been taken away, or ceased to exist, the question no doubt would be presented in a more favorable aspect for the plaintiff. But a mere abandonment of corporate franchises for a few years is obviously insufficient to raise any question of this sort. Indeed it is not raised here, but the claim is that there may be a liability to repair and pay damages for injuries occasioned by non-repair against the corporation and the town at the same time, and cases are cited which are supposed to sanction this claim. It is sufficient however to say, in answer to this claim, that our prac. [58] tice, founded upon our statute, has always been opposed to this view. Again, it is said that the turnpike company, by abandoning their road and leaving it open for travel, dedicated it to the public as a highway, and the town, by its repairs, accepted it, and thus it became an ordinary highway. There is no doubt that it is a highway which the town is bound to repair if it is not still a turnpike road, because as it was such highway previous to the charter of the turnpike, it would remain so after the turnpike ceased to exist, as was decided in Sherwood v. Weston; but the difficulty is that the turnpike company still exists, and is by law liable for any injury caused by its being out of repair, and by the statute the town is made liable only in cases where there is no liability on any other person or corporation. For these reasons we are of opinion that the superior court erred in its charge to the jury, and we accordingly advise that a new trial be granted. • . In this opinion the other judges concurred. New trial advised.