Inhabitants of the Town of Waterbury v. Clark

4 Day 198 | Conn. | 1810

Trumubll, J.

This case depends principally upon ‘ . „ , „ , . the construction of the statutes ot this state respect- ' ing bridges, and the act of incorporation granted to the turnpike company.

The general statute concerning the erection of bridges, obliges “ the inhabitants of the s’everal towns to build and maintain in good repair all needful highways and bridges within their respective townships ; unless it be- . long to any particular person or persons to maintain such bridge in any particular case.” Tit. 29. s. 1. It was; of course, the duty of the town to build and maintain the bridge in question, unless by the grant of incorporation it was made the duty of the turnpike company to maintain it.

The clause in the grant which refers to this subject is this. [Here his honour, read the first clause recited in the statement of the case.J The construction given by our courts on clauses of the same import in other grants has been, that the company are bound to build the bridges over all streams across which the town was not by the general law obliged to maintain necessary bridges; that where, by the elevation of the turnpike road, bridges become necessary over openings for the outlet of water, though none were necessary before ; and also where the road passed over such small bridges as had been usually erected by the districts in the usual mode of work on highways, they must be built and maintained by the company. But in case the stream be such that the* town was before by law obliged to build all necessary bridges across it, if by the laying out of the turnpike road, a bridge becomes necessary in a new place over the stream, the town is still liable to build and maintain it; for the nature of the stream is what the law regards, and not the actual previous existence of a bridge at that particular place. And this I hold to be the , true construction of the clause recited from this grant. The bill of exceptions states that the then defendants . proved to the court, that no bridge had ever been built at the place in question, nor any road laid out there before this act of incorporation was passed ; that a bridge had been since built there ; and that the turnpike company had brought an action at law against the town of Waterbury to recover the’moneys, which the company claimed to have expended in building the bridge. This is conclusive evidence that the company had procured the bridge to be built at their own expense; and that the town of Waterbury had neglected or refused to build it. The votes of the company, and the parol evidence tending to show that the company actually procured the bridge to be built, which were, after this, offered to the court, and not admitted, were immaterial and unnecessary, as being adduced only as farther testimony in regard to a point which had been already, by conclusive evidence, fully proved.

The statute passed in 1807, respecting the building of such bridges, enacts, “ That in all cases where the incorporating act of any turnpike company does not designate what bridges on their road shall be built by them, and what by the town where situated, and such company, in building and putting such road in repair, have built any bridge or bridges, which otherwise might have belonged to the town where situated to have built, it shall be conclusive evidence that such bridge originally belonged to such company to build and keep in repair.” Tit. 166. c. 2. s. 3. But in the present case, the grant of incorporation designates what bridges shall be built by the turnpike company, and what shall be built by the town. The clause already recited gives the rule of discrimination, and makes it the duty of the company to build all the bridges over rivers and streams, over which towns had not heretofore been obliged by law to build and maintain them ; leaving others to be built by the towns as before. The statute, therefore, does not apply in this case. It was wholly immaterial who built the bridge; and all evidence to that point was irrelevant. The only question is, upon whom is the duty to build and maintain it imposed by law ?

I hold the true construction of this statute, which alone will prevent it from operating as a law ex fiost facto, from taking away the legal rights of the turnpike companies, and abolishing grants made to them by the legisla-lature, to be this : that whenever any turnpike company shall have erected any bridges on their road, without making any claim against the town whose duty it might have been to build and maintain them, the act of building them shall be considered as a practical con. struction of their own grant, by the company themselves, and a waiver of all claim against the town.

In this view the present case does not come within the purview of the statute : for, it appears by the suit instituted by the company against the town of Waterbury, that they have ever kept up their claim against the town.

For these reasons, I am of opinion that the judgment of the superior court is not erroneous.

In this opinion Mitchell, Ch. J. Reeve, Edmond, Brainerd, Baldwin, and J. C. Smith, Js. severally concurred. N. Smith, J.

I am of the same opinion. No vote is produced authorizing the directors to build the bridge in question; and their authority to build the road did not empower them to build a bridge which was no part of the road, and which the company was not by law bound to build. Any thing which the directors have said or done on the subject of this bridge, therefore, being unauthorized, is clearly inadmissible. No other vote is produced authorizing any other person to build this bridge ; and a corporation can speak only by their vote. Of course, the testimony of William. Leavenworth Was inadmissible.

The two votes which were offered, merely provide for prosecuting a suit against the town of Waterbwry to recover moneys expended in building the bridge in question ; and the only implication from them is, that the company built the bridge for and on account of the town of Waterbury, either at their request, or under such necessity as in their opinion rendered the town liable without request.

Was this a building by the company within the meaning of the statute tit. 166. c. 2, s. 3.? It was well known to the legislature, that in the origin of turnpike companies, grants had been made in general terms, and the companies had accepted of their grants under a belief that they were bound to build the bridges; and, in making the road, had built the bridges as a matter of course. But after some adjudications rendering towns liable to build them in similar circumstances, they were attempting to depart from their own construction, and throw off the burden of building the bridges on the towns. This was supposed to be unjust; and to avoid this evil the law in question was made. The law applies, in its terms, to those cases only, where the company, in making the road, had made any bridge or bridges ; and the obvious intent of the legislature is, to apply its provisions to those cases where the company make bridges as their own, in making the road, and thereby assume them as theirs.

Such being the manifest intent of the legislature, it is clear to my mind that these votes do not prove a building within the meaning of the law. It was argued at the bar, that at least these votes would prove a building in fact by the company ; and they might have had other evidence to show that they did it on their own account. But they must be taken as they are ; and they speak no other language, and prove no other building, than one for and in behalf of the town of Waterbury. They appear, therefore, prima facie to prove nothing toward» establishing the fact of building by the company on their own account. If any other evidence in the power of the party would have rendered them relevant, it ought to have been stated, and offered in connection with them. No other evidence, however, can be imagined, which would affect the admissibility of these votes, unless it be some other vote of the corporation; and if any such existed, they surely ought to have been all offered together.

Swift, J.

The first question is, whether the clause in the act incorporating the turnpike company, that they shall build bridges which towns are not liable to build, designates what bridges shall be built by the company, and what by the towns.

The general law provides, that towns shall build bridges across rivers in public highways ; and it has been decided by the superior court, that they are obliged by the general law to build bridges over rivers on turnpike roads, unless the turnpike companies are expressly required and bound to do it. It is by the general law only that towns are obliged to build bridges ; and there is no law, cither general or special, requiring any other corporation, or any person to do it, unless in some of the acts incorporating turnpike companies. It is, then, apparently a palpable absurdity for the act of incorporation to require the turnpike company to build bridges which towns are not liable to build, when towns are liable to build all the bridges. It is a void provision in the act, without effect, and leaves the duty of building bridges to be the same as if no such clause was inserted : and towns would continue to be under the obligation to build all bridges. If nothing, however, was said in the act of incorporation respecting the bridges, it would not be pretended that there was a designation by the act who should build them ; if what Is said is a mere nullity, that cannot amount to a designation.

But there must be some object intended to have been answered by such a clause in an act incorporating a turnpike company, and it has been decided by the superior court, in the construction of such a clause, that by bridges which towns are not liable to build is meant small bridges usually built by highway districts. Whether this construction be correct or not, is immaterial in considering the present question; for admitting it to be correct, the clause will not then contain a designation by whom the bridges are to be built. There is no statute requiring highway districts to build bridges of any description: there is no general usage or custom by which it can be determined what are the kind of bridges they shall build: no standard can be given by which it can be ascertained. This uncertain rule cannot be deemed a designation, the plain import of which is a pointing out, and describing viilh certainty.

Indeed, this spems to be the only want of designation which the statute probably contemplated. If nothing was said about bridges, it of course devolved upon the towns to build them. If the bridges were specified, or the towns, or turnpike companies, were required to build them all, then there could be no question : but when á clause like the present was inserted, then the uncertainty of the duty to build might lead turnpike companies to build where they were not bound to do it, and it is the manifest object of the statute to make the act of building conclusive evidence of the obligation. A contrary construction will in effect repeal the statute ; for I doubt whether there is a single case on which it can operate.

If the bridge in question comes within the statute, as not being designated iff the act of incorporation, then it was competent for the town to prove it was built by the turnpike company, in order to show their liability to keep it in repair. That the proof offered was admissible to this point there can be no doubt.

It is an unquestionable rule, that testimony which is relevant, which conduces to prove any fact in the case, is admissible, though it may not prove the whole issue. A party cannot prove his whole case at once. Courts can never know beforehand, that he will not adduce proof to every point in issue; and it is the right of the party to call his witnesses in such order as he shall deem most expedient.

That the proof offered, and which was rejected by the county court, was relevant, and conduced to prove the fact that the turnpike company built the bridge, I apprehend will not now be questioned. To say that a vote of the company appointing an agent to prosecute the town for the reimbursement of the money expended by the company in building the bridge, is not an acknowledgment that they built the bridge, is to deny the effect of the plainest testimony. It does not appear from this vote, that the company built the bridge at the re-' quest of the town, or with the sole view to make them chargeable. For aught that appears on the face of the vote, they built it supposing they were liable, and then afterwards brought an action against the town to recover back the money.

I am, therefore, of opinion, that the judgment ought to be reversed.

Judgment affirmed.