73 Me. 318 | Me. | 1882
By c. 128 of the private laws of 1879, the legislature granted a charter to the Elliot Bridge Company, giving it the 'right to build " a bridge over.the Salmon Falls River, between the town of South Berwick in this state and the town of Rollins-ford, in the state of New Hampshire,” and to take such rates of toll for the use thereof, as the county commissioners for York county might establish.
Section 6 of the act reads as follows, viz : "Provided, no way shall at any time hereafter, be located, or existing way altered, leading from said bridge towards York Beach, within the town of South Berwick, which shall be for the necessary convenience of said company, unless the entire cost and expense of building and maintaining such new way, or altering such way, shall be defrayed by said company during the continuance, and maintenance of said toll bridge.”
The company have accepted their charter with this condition in it and have erected and so far as appears are now maintaining their bridge, taking toll for the use of it. It is therefore bound by its terms whatever may be a fair and reasonable interpretation of them.
The language of the proviso is explicit and includes all ways within the town of South Berwick leading from said bridge towards York Beach, "which shall be for the necessary convenience of said company.”
It appears that certain persons petitioned the county commissioners, representing "that the road leading from the new bridge across the Salmon Falls River, though the towns of South Berwick, etc. to a point in York, ... is narrow, hilly and very circuitous, and needs to be widened, straightened and in some places torbe .mw"located.” What was the action of the commissioners on this petition, the case does not show except as we may infer it from the report of the committee and the arguments of counsel. But it does appear that a committee was appointed upon an appeal and that they have made a report in which it is adjudged, "that as the common convenience and necessity require the location as prayed for in the original petition, the judgment of said county commissioner^ on the aforesaid
It is not apparent how, in the present state of this case, an acceptance of this report is to be of any avail to the appellants. The petition as we- have it in the argument of counsel, and no doubt correctly, asks that a way already located "be widened, straightened and in some places to be new located.” We may infer that the commissioners refused the prayer of the petition. The committee reverse this and say that the location should be made as prayed for. As there is no particular location prayed-for it may be difficult for the commissioners to ascertain and carry out the judgment of the appellate court if one should be entered upon that report. But this question is not raised by the objections filed. It is simply whether the way described in the petition comes within the condition of the charter and whether evidence is admissible to show it; with perhaps the additional question whether the condition asked for can be inserted in the judgment.
It is evident that this last cannot be doné in the present state of the case. Upon that question the interests of the bridge company are deeply involved. It does not appear that they have been notified or in any way made a party, which is clearly necessary before judgment can be entered against them.
It is also clear that the appellees should have an opportunity to be heard upon that matter. Their interests are involved. The
This court is evidently not the place for such hearing and adjudication. It can only hear the parties before it. It does not originate the process; its jurisdiction is only appellate. No parties can be added after it comes into this court, the notices are already given and by the court from which the appeal is made. When the report of the committee comes in, it can only be accepted, rejected or recommitted. No alteration can be made in it, for if there were it would not be the judgment of the committee as it is required to be, and if it is accepted, judgment must follow in accordance with its terms. Still there must be some tribunal to decide questions like this in case of a disagreement of parties. Shall it be in the tribunal, locating the way to be exercised at the time, and as a part of the process of location? or when the question of building and paying the expense is raised ? It must clearly be the one or the other, and in either case it will belong to the same tribunal, that is, with the county commissioners, if as in this case it is a highway, or if a town way with the municipal officers of the town. It would seem necessarily to follow that jurisdiction in this case, of the question under consideration, must be with the county commissioners subject to the right of appeal, perhaps to be exercised at the time of laying out, and as a part of that process, one of the things to be then adjudicated upon, or subsequently when the expense of construction is to be defrayed.
There are two propositions involved in the proviso to the charter. The description of the way upon the face of the earth and the necessary convenience to the company. The first would need no evidence, but must be apparent upon the face of the petition; the latter may be more difficult of solution and might require evidence. From the suggestions already made it follows that when a way is prayed for, leading from said bridge towards York beach, within South Berwick, the bridge company should be notified, and if the location or alteration is found to be of common convenience and necessity, it should then be considered and adjudicated upon, whether it is or is not "a necessary convenience ” to the bridge company. If it is so found, the law is peremptory that it shall not be located, unless the company shall defray the expenses of building and maintaining. If not so-found it may be located, and built and maintained at the expense of the town.
Whether the county commissioners did so adjudicate, and that was a part of the judgment reversed by the committee, does not
It is, however, claimed in behalf of the petitioners that the report of the committee should be accepted without a further hearing, because,
1. If the way by its location is brought within the description named in the condition, still it is not for the "necessary convenience” of said bridge company. This may be true. But the appellees assert the contrary. It is, therefore, a question of fact which must be settled by the proper tribunal. The reasons given in the answer " because said way is not necessary or indispensable to the maintenance or operations of said bridge and is not petitioned for by said company, nor in its behalf,” are hardly sufficient to prevent a hearing. The way may not be indispensa- • ble to the operations of said bridge, and yet it may be a "necessary convenience,” and this is all the-law requires. It does mot even require that it should be a convenience and necessity. If it did that, the term necessity could have no other meaning than that attached to it in the location of ways which must be of common convenience and necessity. Here the term necessary iis not applied to the bridge at all. It is an adjective and qualifies convenience and that alone. The bridge was built for the benefit of the company, that it might make a profit from it. This profit is the convenience of the company. It may be an awkward use of the word, but no other meaning can be attached to it in 'the connection in which it is found. If then the way is so located that it necessarily will increase the profits of the company arising from the use of the bridge, it is " for the necessary convenience of said company.” Nor is it necessary that the company should •petition or ‘ ask for said way, nor is it material that any of the petitioners are or are not owners or interested in the bridge. Nothing of the kind is incorporated into the proviso, nor will any such fact change or modify its meaning.
2. The fact that the committee have adjudged the way to be of common convenience and necessity, is not conclusive upon
3. It may be, and probably is true that the legislature did not intend to deprive the citizens of York county of a way, which their common convenience and necessity require. It may be that if the statute requires that construction, it might be declared unconstitutional, as excepting a portion of the citizens from the benefits of a general law. But it does not contemplate that such a way shall not be located. It only provides in a certain contingency how the expenses of its construction shall be defrayed. This question, however, is not now before us, and can only be raised by the bridge company when it is a party, refusing to pay the expenses of construction on the ground that the statute leaves it optional upon its part to pay or refuse. It will be sufficient to consider that question when the company refuses to perform the condition of a charter granted for its benefit, and by it accepted and acted upon.
Exceptions dismissed.