7 Conn. 86 | Conn. | 1828
The statute, on which this action is founded, subjects towns to the burthen of making and repairing all necessary roads within their respective limits, unless it belongs to some particular person, persons or corporation to make and repair the same ; and provides, that the town, person, &c. who ought to repair such road, shall pay just damages for all injuries received in body or estate, through, or by means of their neglect. Stat. 266. lit. 48. s. 1. 4. 5. This statute contains general regulations on this subject, but imposes no duty on the defendants, unless the facts alleged by the plaintiff evince, that it belongs to them to maintain and repair this road.
It is contended, by the defendants, that these matters are not well pleaded ; that their charter, being a private act, ought to have been recited. The charter is certainly a private act; and is a contract between the state and the corporation. Dartmouth College v. Woodward, 4 Wheat. 518. It is a rule in pleading, that the plaintiff should declare on a contract according to its legal effect, and not on the evidence of the contract. Bacon v. Page, 1 Conn. Rep. 404. “ In general,” says Chitty, “ whatever circumstances are necessary to constitute the cause of complaint, or the ground of defence, must be stated in the pleadings, and all beyond is surplusage ; facts only are to be stated, and not arguments or inferences, or matter of law.” Courts will not ex officio take notice of private acts of the legislature ; and consequently, such parts of them as may be material to the action or defence, must be stated in pleading.” 1 Chitt. Plead. 218. 220 Rut, it is enough if they are counted upon, or the substance stated. The Middletown Bank v. Russ & al. 3 Conn. Rep. 135. 139 Hempstead v. Reed, 6 Conn Rep. 480. And they must be set out at least with certainty to a common intent. 3 Inst. 303. a. And if greater certainty were requisite, the defect is aided by verdict. Hendrick v. Seeley, 6 Conn. Rep. 176. Bartlett v. Crozier, 15 Johns. Rep. 250. 254. 1 Saund. 228. a. Archb. Dig. 115. And where the law presumes, that the knowledge of the facts is in the opposite party, less certainty is required ; because the principal object of pleading, is, to state facts, of which the opposite
2. Are the defendants bound to repair the road 1 They accepted the charter, made the road, erected gates and received toll of travellers thereon, for nearly twenty years. In Riddle v. The Proprietors of Locks and Canals on Merrimack River, 7 Mass. Rep. 169. a duty was imposed on the defendants in these words: “ The said proprietors shall erect, make and forever maintain such dams, canals and locks,” &c. By accepting this charter, it was held, the obligation became express and absolute. “ When the act of incorporation first passed,” said Parsons, Ch. J. (p. 184.) it was optional with the proprietors whether they would, or would not, take the benefit of it. But after they had made their election, by executing the powers granted, and claiming the toll, then the duties imposed to make canals, &c. attached.” In The Commonwealth v. The Worcester Turnpike Corporation, 3 Pick 326. the defendants were indicted for not repairing their road, and contended, that this part of the road had not been so made as to be accepted. The court said : “We do not think that the corporation can object, that this part of the road has never been so made as to be accepted. They have established their gates, and have taken toll for many years ; and part of the toll so taken is considered by law as a compensation for making this part of the road.” In Bartlett v. Crozier, 15 Johns. Rep. 250. the defendant, being an overseer of highways, was sued for neglecting to repair a bridge, whereby the plaintiff’s horse was injured. Spencer, J., in de
3. But the defendants claim, that they are not responsible for this injury, for two reasons : 1st, Because at the date of their charter, towns and particular persons were bound to repair all roads, and liable for all injuries occasioned by their neglect. 2ndly, That the defects in the road were not the proximate cause of the plaintiff’s injury.
The statute on which this action is founded, (Stat. tit. 29. p. 119. n. ed. 1808. p. 10. ed. 1702.) has been in force, substantially, for more than a century. The only apparent alteration is the insertion of the word “ corporation,” ex abundanti cautela, in the revision of 1821 But owners of public roads were always bound to repair them, and liable for damages occasioned by their neglect, as already shewn. Corporations are artificial persons, and, for certain purposes, are considered as natural ones ; e. g. they have been denominated occupiers of land, deemed inhabitants of cities, &c. and bound to repair bridges ralione tenurce suce terrarum. They have sued, and have been sued, as citizens. Rex v. Gardner, Cowp. 79. United States Bank v. Deveaux, 5 Cranch 61.
The defendants claim, that the neglect of the defendants is not laid as the proximate cause of the plaintiff ⅛ injury. But it is laid and found, that it did not arise from the neglect, folly or
I am, therefore of opinion, that there is nothing erroneous in the judgment complained of.
Judgment affirmed.