58 Vt. 234 | Vt. | 1885
The opinion of the court was delivered by
The question whether under existing statutes a highway may be laid across a railroad and built at the same level, which is one of the questions in this case, has been twice argued in the General Term, and once at a regular term.
It is insisted, first, that there is no authority under our statutes to lay a highway across a railroad. The claim is that the legislature having granted to railroad companies the right to take land for their railroads, being for public use, the land thus taken cannot again be taken for other public use, without express or at least implied legislative authority to that effect; and that our statutes neither express nor imply such authority. It is settled law that property already taken and held for public use by a corporation cannot be interfered with by another corporation for other public use, without legislative authority to that end. Pierce
The question in this case therefore rests upon the construction- to be given to section 3381 R. L., which is as follows: “ If, after laying out and making a railroad, a turnpike road or other way is so laid out as to cross said railroad, the turnpike road or other way may be so made as to pass under or over the railroad, and shall be so made as not to obstruct or injure it.”
This is a section of the general railroad law which was passed long after the enactment of the highway law. Indeed, railroads were unknown when the highway law was enacted; therefore, in its enactment the legislature could have had no direct reference to railroads; and it is a singular fact that no amendatory provisions are to be found in the highway statutes conferring any powers upon towns in respect to the crossing of railroads. The only suggestion upon the subject in all our statutes, is that contained in section 3381, of the general railroad law. As before seen, the
As the right to lay a way across a railroad existed prior to the enactment of section 3381, we see no reason why that right was not general to cross in any manner that should not essentially injure the railroad. The.railroad company obtains only an easement, a right of way, by eminent domain, not the fee. A crossing above or below would not at all interfere with the easement, or, if at all, certainly the interference would be much less than by a grade crossing. When a right of way is obtained by eminent domain, the right to build the way by cuts, fills, or tunnels, is undoubtedly subject to the maxim, sic utere tuo, &c. As we think that before this statute was enacted a highway laid across a railroad could be built at grade, or above or below, the only object of the statute must have been to restrict-or limit the method of building, not to confer a right. The word “may” can be construed as “shall” or “must,” when such was the legislative intention. It should be so construed if the legislature intended to impose a duty and not simply confer a privilege or discretionary power. If the railroad company held the fee of its road bed, the same result would follow. It is argued that the word “ may ” in section 3381, must receive the same construction as the
Our attention has also been called to numerous other statutes in pari materia, by counsel on both sides; but none of them are so related to this section as to be convincing the one way or the other.
It is also claimed that this is the first time the question has been raised since section 3381 was passed in 1849, and that there has been a popular practical construction which should be adhered to. If it clearly appeared that railroad companies and towns, through their respective officers, had in fact given this section the construction which the defendant now claims for it, it should have great weight with the courts; but there may have been so many reasons why no question was made, independent of the view as to strict right, we think it cannot fairly be assumed that there has been this practical construction of the statute. There is nothing in the case to show how highways laid across railroads have been built. It is not claimed but that some have been over or under the railroad. It is easy to see that railroad companies may have preferred and agreed to grade crossings in many instances. It is mere speculation as to the number of highways laid across railroads since the latter were built. It is not probable that the number is large. Grade crossings are very numerous, but they mostly occurred by building railroads across highways instead of highways across railroads.
It is also claimed that if the right to build on grade with the railroad did not exist, then the existing grade crossings
Decree affirmed and cause remanded.