Morris Canal & Banking Co. v. State

Elmer, J. The question presented to the court upon the indictment in this case, and the facts agreed upon, is whether the Morris Canal and Banking Company is bound to build a bridge across the canal, where it is crossed by a public road laid out and opened since the construction of the canal. By the common law, as well as by the statute 22 Hen. 8, ch. 45, the counties were chargeable with the making and repairing of public bridges within their limits, unless some other persons, lands, tenements, or bodies corporate were shown to be liable, by reason of tenure, prescription, or some other special obligation. 2 Inst. 701; 2 East 342, King v. West Riding; 2 M. & Sel. 513, King v. Inhab. of Kent. Public bridges in this state are now, by express statute, to [68] • be erected and maintained by the counties or townships in which they are situate ; and this has been the law from the first settlement of the state, except where special acts have made other provisions. It is therefore necessary, to maintain this indictment, to show affirmatively that the obligation to build and maintain the bridge in question is thrown, by some act of the legislature, either by express enactment or by fair implication, upon the company. This, it is insisted, is the effect of the twelfth section of the act of incorporation. That section enacts, “that when the canal shall cross any public road or farm, it shall be the duty of said company, at their proper expense, to make good and sufficient bridges across said canal, and to keep the same in repair, so as to prevent any inconvenience in the usage of the said roads or farms by reason of the said canal.” That the company is required, by this section, to erect and maintain bridges in all cases where the canal crossed an existing public road, is not disputed. The precise question to be decided is, whether that obligation extends to bridges made necessary by roads subsequently laid out. The indictment avers that a public road was duly laid out, and that the canal crosses it. The right of the surveyors of the highways to lay out a road, and of the county to erect a bridge across the canal, is not necessarily involved. As the case is presented, it must be assumed that the road itself is legally established across the canal. It may be proper, however, to remark, that if it be admitted, according to the case in 2 Zab. 304, that a highway cannot be laid out on the bank of a canal or along a turnpike, yet, as there suggested, the fair application of this principle does not warrant the conclusion that a canal or turnpike may not be incidentally crossed. The property of the canal company cannot be taken for the public use without just compensation, and perhaps cannot be taken at all for the purpose of making a highway, without the authority of a special act of the legislature. But the mere act of crossing the canal, if such a bridge be built as does not materially interfere with the appropriate use of it, may well be considered not to be such a taking of property as requires any compensation. The legis [69] latnre cannot be supposed by the mere act of authorizing the canal, to have intended to prevent the future laying and opening of such public reads as subsequent experience should prove to he necessary. If the construction of the twelfth section of the charter be as is insisted on the part of the state, it is expressly designed to provide for such roads, and to require bridges to be constructed by the company wherever they shall, cross the canal. But the plain and obvious meaning of the language used in that section is, that, as a condition upon which authority is granted to construct the canal, and exact toll for its use when they constructed it, if it should, then cross any public road or farm the company should build a bridge, and afterwards keep i.t in repair, so as to prevent any inconvenience in the use of said road and farm. In other words, they were to compensate by a bridge for the injury done to any existing road or farm, so far as such a structure would effect that object; and for any further injury to private property, a pecuniary compensation was required to be made, io the manner prescribed by the act. The language used does not necessarily imply, nor do I see any reason to infer that it was meant to imply, that roads afterwards laid out and opened across it, or farms afterwards occupied, if such there should be, were also to be provided with bridges at the expense of the company. To give the section such an interpretation, would be to extend the meaning of the language employed beyond its fair and natural import without any adequate reason. If the contrary construction would deprive the public of the right to have a road or bridge, whatever might be the necessity for it, we might well hesitate, to decide. But, at most, the only question is, who shall incur the expense of the bridge, the company whose canal renders it necessary, or the public who are to use it. Prima facie, the burthen should fall on the latter; and this being so, the words of the charter cannot be properly held to imply more than their proper grammatical meaning. In the case of the Trenton Water Power Company (Spencer 659), it was held by this court, that where a company was empowered to cut a watercourse which crossed a public street, [70] they were bound to build all necessary bridges, although the act made no special provision on the subject. And in the case of the King v. Kerrison (3 M. & Sel. 526), it was held by the Court of Kings Bench, that where certain persons^ and their successors were authorized by an act of parliament to make driver navigable, and to cut the soil of any person for making new channels, by virtue of which they cut through a highway, and rendered it impassable, and a bridge was built, over which the public passed, the undertakers were bound to keep the bridge in repair, such being, in the opinion of the court, the fair meaning of the act. According to these decisions, the company now indicted would have been held liable to construct and keep in repair bridges for the use of all existing public roads, without the express requirement of the twelfth section $ and hence, it is urged, it ought to be inferred that the legislature meant to do more than to affirm an obligation that would have been implied. But such express affirmations of duties, which might otherwise be fairly implied, are very common ill acts conferring special authority, and especially in those conferring upon a company the state’s power of eminent domain, and are so obviously proper that it would be very unsafe, on this account, to depart from the plain meaning of the language employed. Had more been meant, more could have been easily expressed, and we ought to suppose would have been. The preamble of the act authorizing the canal over which the road in question passes, declares that its construction will be of great public benefit and advantage to the people of New Jersey, and the twenty-fifth section enacts that it shall be esteemed a public highway. It is not therefore a nuisance, but was designed to be, and is, a navigable stream of water, in the free and unobstructed navigation of which the public is deeply interested, although a private company owns and controls it, and derives a revenue from its use. If it be needful for the public convenience that a public road should be laid across it, it is reasonable that this should be done at the public expense. The legislature itself cannot take the property, or deprive the company of its use, except for the public benefit and by making just compensation. The canal is private property, and so is a [71] dam and raceway supplying water to a mill or manufactory. The general road act has provided that the public shall build and repair the bridges over such races, unless the highway hath been laid out before the making of the dam and race, and the same just principle is applicable to a navigable canal. Nothing less than an express and unambiguous declaration in the act authorizing such a canal can justify a different rale. Being very clearly of opinion that there is nothing in the act in question which makes it the duty of the company to build the bridge, I think our judgment upon the case presented should he for the defendants.