89 N.J.L. 48 | N.J. | 1916
The opinion of the court, was delivered by
The defendant is charged with maintaining an improper bridge over the Morris canal so as to obstruct and narrow a highway. While the indictment does not in so many woi'ds charge a violation of the defendant’s statutory duty, which measures the defendant’s obligation (State v. Lackawannna Railroad Co., 84 N. J. L. 289), it nevertheless avers facts which amount to a violation of the statutory duty, and is sufficient. State v. Lackawanna Railroad Co., 86 Id. 62. The averments of the indictment may have been thought important because the statutory duty is imposed by the charter of the Morris Canal and Banking Company, while the defendant is only lessee of the property of that company. In our opinion this makes no difference in the obligation of the lessee. New York and Greenwood Lake Railroad Co. v. State, 50 Id. 303; Meyer v. Harris, 61 Id. 83. Although the Morris Canal and Banking Company is not discharged by the lease from the obligation imposed by the charter (Ryerson v. Morris Canal and Banking Co., 71 Id. 381), the lessee took a lease in perpetuity which is equivalent to a title so
A greater difficulty arises out of the contention of the defendant that the duty is limited and defined by conditions as they existed at the time the charier was granted. There is undoubtedly a difference between the obligation imposed by the charter of the canal company as construed in Morris Canal and Banking Co. v. State, 24 N. J. L. 62, and the obligation of a railroad company as generally understood since the decision of Central Railroad Co. ads. State, 32 Id. 220, and expressed by Mr. Justice Dixon in his concurring opinion in Morris and Essex Railroad Co. v. Orange, 63 Id. 252, 273. Under Chief Justice Green’s decision the canal company was not compelled by their charter to maintain bridges over the canal where it was crossed by a highway laid out subsequent to the construction of the canal. The facts of the present case are perhaps not entirely clear in this respect. There seems to be no doubt that the obstruction is due to the fact that a new road has been laid out and macadamized which has greatly increased the travel over the bridge. This new road seems to begin near the end of the bridge, but it is said in the brief for the plaintiff in error that the inconvenience complained of arose from the use of the southern end of the old road in conjunction with the entirely new road on the north side of the bridge. This seems to mean, as was probably the case, that the new road connected with the old road at the bridge. If this is so, we have the case of traffic increased by the new road but passing over the old road at the entrance, upon the bridge. This is only the ordinary case where traffic is increased by the development of the country or the growth of a town. To such a case the rule of Morris Canal and Banking Co. v. State is not applicable. Indeed, the stress
We find no error and the judgment is affirmed.