Worcester, Nashua & Rochester Railroad v. Nashua , 63 N.H. 593 ( 1885 )

Carpenter, J.

It was provided by Rev. St., o. 142, s. 4, that “ if any railroad shall intex-sect or cx-oss any highway in axxy town in this state, such town may, at axxy legal town-meeting, direct that such place of crossing or intersection shall be secured by a bridge over said road, or by the erection of gates on both sides of said highway, as the town may think expedient.” The section has been amended ixx some particulars (Laws of 1852, e. 1232, Gen. St., e. 147, s. 3) axxd condensed, but the provision in respect to bridges has never been changed. ■ Gen. Laws, c. 161, s. 3. The plaintiffs’ act of incorporation provides that it “ shall be construed and taken as subject to all the provisions and restrictions of the Revised Statutes in relation to corporations and railroads. Laws of 1844, o. 188, s. 11; Laws of 1845, c. 288, s. 4. The questions, therefore, whether the plaintiffs are a public corporation (see Laws' of 1883, c. 239, s. 1,), and whether the legislature can impose upon it burdens in addition to those which existed at the date of its charter, do not arise. The provision of the statute requiring the plaintiffs at the direction of the town to secure a highway crossing by a bridge, is as much a part of its charter as if inserted therein. -

A railway crossing is a crossing of two highways. The purpose of the statute is to protect travellers on both against the dangers arising from the crossing, and to cast the expense of the necessary protection upoxx the maxxagers of -the way which, by the method of its operation, causes the danger. No distinction is expressed betweexx towxx highways established by law axxd coxxstructed, and those so established but not coxxstructed, axxd no ground is perceived for implying any. If the -building’ of the bridge is the constructioxx of a xxew town highway, it is equally so in both cases— in the first, as a substitute for the old one, axxd ixx the other, as a part of the xxew one. The bridge is a part, xxot of the town way, but of the railway. Its erection may or may not require the doixxg of woi’k which must otherwise be done by the towxx in buildixxg its highway;—if it does, it is not because the railroad corporatioxx is compelled to make town ways, but because the bridge cannot otherwise be constructed. The situation may be such that the erection of the bridge may increase rather than diminish the work of xxxaking the town highway. The railroad may, if it can, nxake the bridge withoxxt ixx any way ixxtei-fering with the'town roadway.

If a new towxx highway is established and coxxstructed upon the same grade with the railroad at the Grossing, it is conceded that the towxx xxxay then call upoxx the corporation to build a bx-idge, if the public safety requires it. No good reasoxx is suggested why it may not be directed to bixild the bxidge before as well as after the road is opexxed to the public. There may be cases in which it is essential to the public safety that the road should not be opened until the bridge is completed. Railroad cox-porations are protected against capricious and unreasonable requirements on the part of towns by their right of appeal. G. L., c. 161, ss. 5, 6.

In answer to the suggestion that the vote is insufficient in terms, it is enough to say that the statute does not require any particulars of the structure to be stated.

Case discharged..

Blodgett, J., did not sit: the others concurred.