Commonwealth v. Inhabitants of Deerfield, 88 Mass. 449

Commonwealth v. Inhabitants of Deerfield

88 Mass. 449 | Mass. | 1863

Hoar, J.

The principles which must govern this case are sufficiently clear, though the application of them to various cases likely to arise, or at least which may be easily supposed, is not free from difficulty.

The question is, merely, What is the extent of the bridge which the Proprietors of the Connecticut River Bridge are bound to maintain by virtue of their franchise ? In the absence of any express limits assigned to the bridge by the charter, or by the *454laying out of the -ways connecting with it, the rule must be sought in a fair interpretation of the language of the charter by reasonable implication. The charter authorizes the building a bridge over the Connecticut River from the western shore to Montague. The turnpike with which the bridge connected, and which has since been laid out as a public highway, was laid out originally so as to cross the river on the bridge; but without authority to take the franchise of the bridge company, and without attempting to occupy or control it; and its points of junction with the bridge were left wholly undetermined. Under these circumstances, the obligation of the defendants to maintain and repair the highway ends where the territory occupied by and belonging to the bridge company begins.

By St. 22 Hen. VIII. c. 5, the portions of highways which lie next adjoining to any ends of bridges distant from the said ends by the space of three hundred feet are to be repaired with the bridges; “ one of them,” in the words of Lord Coke, “ as it were, depending upon the other.” 2 Inst. 705, n. 10. This statute was considered, in The King v. West Riding of York, 7 East, 588, “ as having specified the distance of three hundred feet from the ends of bridges, for the purpose of reducing to more convenient certainty what should in all cases thereafter be considered the extent and limit of this charge upon the county.” Lord Ellenborough in that case observes, “ I consider it as having been laid down long ago by Lord Coke, that the three hundred feet of highway at the ends of the bridge are to be taken as part of the bridge itself; being in the nature of the thing intimately connected with it, and the exact limits difficult in some cases to be ascertained, from the continuance of arches beyond the sides of the river. The St. of Hen. VIII. meant to define the limit which perhaps was uncertain at common law; but the statute still proceeds upon the assumption that there existed a common law liability for the county to repair the highways at the ends of the bridge as well as the bridge itself, as appendages to it.”

It is not argued, nor is any evidence offered, that this rule was ever adopted as part of the common law of Massachusetts. *455But the reason of the thing is certainly very much the same here as in England. Before a bridge is built, a road to the river, for the purpose of crossing, must connect with a ford or a ferry. In either case the road seeks the level of the water. But when the river is crossed by a bridge, the road must be adapted to the height of the bridge, and its form and dimensions will necessarily be dependent in some measure upon those of the bridge. Its level must be varied as the bridge is made higher or lower, so as to make the ascent or descent gradual and convenient. The approaches to a bridge must therefore to some extent be regarded as appendages to it, the right and the duty to make and maintain them being included in the franchise. Where there is nothing in the statute creating the franchise to define the extent of the bridge in this respect, it must be determined by what is reasonable under the circumstances of the particular case; and this may be fixed by the practical construction which has been applied in the exercise of the franchise by its owners, with the acquiescence of the public. That something more than the mere structure of wood, iron and stone is meant by a bridge is shown in the case of bridges which railroad companies are required to make and maintain where their roads cross public ways. Parker v. Boston & Maine Railroad, 3 Cush. 116. Sawyer v. Northfield, 7 Cush. 496.

In the case at bar, the fact that for many years the bridge company had been used to take the only care that was taken of the road for a certain distance at the ends of the bridge, and to make repairs upon it, is. important and probably decisive, not on the ground of prescription, but as showing what had been practically regarded as the actual extent of the bridge. In the commentary of Lord Coke upon the statute of Henry VIII. before cited, he says: “Nota, if a bishop or prior, &c., hath at once or twice of aimes repaired a bridge, it bindeth not; (and yet is evidence against him, untill he prove the contrary.)” 2 Inst. 700. And on a claim for damages for an injury caused by want of repair in a way or bridge, repairs made within six years are by our statute conclusive in fixing the liability of the person or corporation making such repairs for the maintenance of the same. Gen. Sts. c. 44, § 26.

*456Upon the other principal point in the case, we are of opinion that when a flood in a river has washed away a part of its banks, and so widened the bed of the stream, the obligation of a corporation having the franchise of a toll-bridge across the river to maintain and keep its bridge in repair, will require the extension of the bridge to the new bank thus created, if there is no other limitation of the franchise; and that this will carry with it a like duty in relation to the maintenance of the abutments and approaches to the bridge, to that which devolved upon the corporation when the bridge was first built. This conclusion must inevitably follow from the consideration that a bridge is to be built and maintained across the river, and that the extent of the duty is to be measured by the necessity arising from the changes in the river from time to time. In the case of the Abbot of Combe, Year Book 43, Assize, pl. 37, cited by Lord Ellenborough in the case in East before referred to, Knivet, J. said: “ And although by the accretion of the water the ends shall be removed, yet you are bound to pursue the course of the water, and to repair the highway.” A principle and result quite analogous are to be found in the decision in the recent case of Child v. Boston, 4 Allen, 41, upon the obligation of the city of Boston to maintain a common sewer emptying into the basin of the Back Bay. It was there held that, as the shore receded from the mouth of the sewer as first built, the city was bound to extend it, so as to secure the free discharge into the channel contemplated in its original construction.

It seems to have been assumed at the trial, either that this obligation to extend the bridge as the river widened did not exist, or that the facts proved did not show a widening of the Connecticut River. But this, we think, should have been submitted as a question of fact to the jury. It appeared that where the bridge joined the land the earth was swept away by the flood to a depth of fifteen or twenty feet, and that this cut was continuous from the edge of the bank as it formerly existed. It also appeared that all the earth was- carried off down to the solid rock, so that a precipitous bank of earth was left at the termination of the road which remained, in a line with the general river bank *457on that side, and with only a projecting point of rock beneath. We think it could not be said, as a matter of law, that these facts did not prove a change in the river bed by a widening which altered the bank.

One other point, upon which the defendants rely, cannot be supported. If they have neglected to repair a part of the road which it is their duty to maintain, it is no defence that this part would be of no immediate practical use, because the bridge company have also been guilty of a neglect of duty. Otherwise, if a bridge between two towns were carried away, neither of them could be compelled by indictment to restore its own share of the structure, and the public would be without a remedy.

Verdict set aside and new trial granted.