39 Conn. 128 | Conn. | 1872
The defendant corporation in 1848 constructed its railroad, laying its track in the bed of the old canal. The ’road crosses Fair street, in New Haven, below the level of the street, at right angles. The bridge across the excavation was built some six feet higher than the old bridge across the canal. The approach to the bridge was graded up, and the sidewalks of Fair street were reconstructed from the bridge to Union street, a distance of one hundred and eleven feet. All which was done by the defendant in pursuance of its charter. In 1849 the act was passed which appears as section 481 of the Act concerning Communities and Corporations. In 1857 the act was passed which now appears as section 33 of the charter of the city. The plaintiff claims that, under the act of 1849, it is the duty of the defendant to keep in repair the highway in Fair street from Union street to the bridge, and that this duty includes the reconstruction and repair oí the pavements of the sidewalks of Fair street. The defendant corporation was duly notified of the necessity of reconstructing the pavement, and required to do it, but wholly neglected the requisition. The city thereupon made the needed repairs, and now seeks to recover the expense in an action oí assumpsit, on the common counts.
The 33d section of the city charter is as follows:
“ Said court of common council shall have supervision over all bridges crossing railroads in said city, and may, from time to time, order the building, widening or repairing of such bridges, in such manner and within such times as in their judgment public convenience may require; and in Case any railroad company whose road such bridge crosses shall neglect to obey such order, said common council may cause the required building, widening and repairing to be executed at the expense of said city, and the treasurer of said city may then collect the amount of such expense in an action of trespass on the case, in his own name, against such delinquent company.” *
Now the word “ bridge” may, in certain connections, be so used as to include the embankments and approaches, but in this 33d section of the city charter we think the word is restricted to the bridge proper, to the exclusion of embankments, filling and approaches, unless indeed perhaps the immediate approach may be included as part of the bridge proper itself.
It will be seen that we thus decide this case against the city, without deciding some important questions which were discussed at the bar regarding the duty of railroad companies under the 481st section of the Act concerning Communities and Corporations. We have felt embarrassed by the difficulties involved in these questions, and one reason why we do not now decide them is, that some further legislation seems to us to be necessary and proper, to make more definite the precise duty intended to be cast upon railroad companies.
And first, it seems important that some provision should be made for determining what shall be deemed approaches to a bridge, in order that the dividing line between the duties of the city or town on the one hand, and of railroad companies on the other, may be distinctly marked. This might be done by direct legislation, or by reference of the question to railroad or to county commissioners, or some other proper tribunal.
And secondly, if, as the plaintiff claims, it is the intention.
The Superior Court is advised to render judgment for the defendant.