Township of Burdell v. Grand Rapids & Indiana Railway Co.

Grant, J. {after stating the facts). Upon the above statement of facts the court is asked to determine whether it is the legal duty of the respondent to maintain the bridge and keep it in proper repair for travel. Counsel for the plaintiff concedes that no such question has before been submitted to the courts, and that he is unable to find that it has been discussed in the text-books. He seeks to base respondent’s liability upon the grade-crossing cases which hold that, both at common law and under the statute, it is the duty of the railroad company to restore the highway to its former condition, as near as may be, and to maintain and keep sidewalks and crossings in reasonable condition for public travel. He cites the following cases: Maltby v. Railway Co., 52 Mich. 108 (17 N. W. 717); Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094); Jeffrey v. Railroad Co., 108 Mich. 221 (65 N. W. 755, 31 L. R. A. 170); Tobias v. Railroad Co., 103 Mich. 338 (61 N. W. 514); Kaiser v. Railway, 131 Mich. 506 (91 N. W. 752). These cases all involve grade crossings, with the railroads in actual operation. They have no [257] bearing, either upon the question in this case, or even upon grade crossings where the road has been abandoned, the track taken up, and the highway left in proper condition for travel. There is no obligation in this case resting upon contract. The township evidently acquiesced in the elevation of the bridge. The respondent properly fixed it and its approaches, made it safe, and left it in good condition. Manifestly no obligation would have rested upon the respondent if its cars could have been run under the bridge with safety. There is no evidence that the public are inconvenienced by the change, or that it will cost the township any more to rebuild or repair the bridge at its present height than as it formerly existed. The mere elevation of this track (whether a foot or more does not appear) cannot be held to transfer from the township to the railroad the legal duty to forever thereafter rebuild and repair the bridge. The judgment is affirmed. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.