Town of North Providence v. Dyerville Manufacturing Co. ( 1880 )

We fail to discover any ground on which the plaintiff town can maintain its action, which is assumpsit, against the defendant corporation. The town contends that the action lies because it was the duty of the corporation to repair the bridge under the statute. Gen. Stat. R.I. cap. 60, § 22. That section, § 22, provides that whenever any artificial watercourse has been or shall be made through a previously existing highway, the proprietors or occupants shall make and maintain all necessary bridges over it. The section applies where the highway exists before the watercourse; but here no highway, in the sense of the statute, existed previously to 1873, whereas the watercourse was both made and widened before that time. It is true, a turnpike road, which is a species of highway, had previously existed, but a turnpike road, though it is a species of highway, is not a highway within the meaning of the word as used in cap. 60, for cap. 60 relates only to such highways as the several towns of the State are bound to keep in repair, that is to say, to "highways" as the word is popularly used. We therefore decide that the action does not lie because of any duty to repair devolving on the corporation under cap. 60, § 22. Whether, if there were any such duty, the action would lie, we need not determine.

If the action be maintainable, it is because the turnpike corporation had a right to require the defendant corporation to keep the bridge in repair, and because the town has succeeded to the right under the special legislation in pursuance of which the turnpike road was converted into a free public highway. But supposing the right existed in favor of the turnpike corporation, did the town succeed to it? The legislation consisted simply of a resolution of the General Assembly appropriating one thousand dollars for the purpose of making the turnpike road a free public highway, to be paid to the turnpike corporation on certain conditions to be performed or accepted by the turnpike corporation and the several towns in which the road was located. The turnpike corporation was required to release to the State their corporate rights and franchises under their charter and in and to their road, and to release to said towns all gravel pits and rights to get gravel which it might own or be entitled to, and the towns were required to accept the road and agree to maintain it as a free public highway. The conditions were complied with and the money paid. The effect was to convert the road, including the bridge as a part of it, into a free public highway, and to burden the towns with the duty of keeping it in repair. But, except the gravel pits and rights to get gravel above mentioned, the towns acquired no rights from the turnpike corporation. We do not see, therefore, how it can be held that the plaintiff town succeeded to the right of the turnpike corporation, if the turnpike corporation had the right, to have the defendant corporation keep the bridge in repair. The town has no claim on the defendant corporation, and therefore, having made the repair itself, it cannot maintain an action of assumpsit against the corporation for reimbursement. There is no privity or relation of any kind between the town and the corporation by virtue of which any promise of reimbursement can be implied.

Petition dismissed.