owners of such railways might use them as common carriers of freight and passengers.11 11. In crossing highways, railway companies will be responsible to any person injured by leaving a culvert, made to prevent water accumulating, in such a condition that when covered by snow he fell into it, being unable to see in.12 12. A railway corporation having acquired the right to lay its line across a highway, may lay and maintain as many tracks as are essential to the convenient transaction of its business.13 13. A railway corporation is entitled to damages for land taken. by laying a public highway across its line, and for the expense of maintaining signs and cattle guards at the crossing, and of flooring the same and keeping it in repair; but not for any increased liability to accidents, for increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over the track. And in assessing damages, in such a case, no supposed benefits from an increase of travel on the railway can be set off against the company,14 14. Under the revised statutes of Massachusetts, town or city authorities have no power to lay a highway across a railway, at grade, and the company is not estopped from objecting thereto by any agreement with the former owners of the land in regard to the right of way to be used by them at the point where the highway is laid.15 Nor can such authorities, under the general statutes of that state, lay out a way across any portion of the land, not exceeding five rods in width, which has been taken by a railway company for their line, unless permission has been granted by the county commissioners.16 11 Hughes v. Chester & Holyhead Railw. Co., 8 Jur. N. S. 221. 12 Judson v. N. Y. & N. Haven Railw. Co., 29 Conn. R. 434. 13 Commonwealth v. Hartford & New Haven Railw., 14 Gray, 379. 14 Old Colony & F. R. Railw. v. County of Plymouth, 14 Gray, 155. SECTION V. Rights of Telegraph Companies. 1. Right to "pass directly across a railway," | 3. Erecting posts in highway a nuisance, does not justify boring under it. even if sufficient space remain. 2. Exposition of the terms "under" and n. 4. Opinion of Crompton, J. 66 across." * § 109. 1. Where a telegraph company had by their act the power to pass under highways, but to pass "directly but not otherwise across any railway or canal," and a railway was laid upon the level of a highway, in accordance with their special act, it was held that the telegraph company could carry their works under the highway at the point where it was intersected by the railway.1 But the telegraph company, attempting to pass under the railway in such a manner as to disturb their works, was held liable in trespass.2 2. Parke, B., in giving judgment, said: "Across seems therefore different from under, and the power to carry across' does not enable them to go under. It may be that this prohibition would not apply, if the railway were carried over a highway, at a great height, for then the highway and railway might be considered independent of each other.' 3 3. In a recent English case it was decided, that a telegraph company, which erected posts in any portion of the highway, although not in the travelled portion of it, whereby the way is rendered in any respect less commodious to the public than before, is guilty of committing a nuisance at common law; and the fact that the jury find that a sufficient space for the public use remained unobstructed, will not afford any justification, unless the act is done by legislative permission.4 1 Southeastern Railw. v. European & Am. Tel. Co., 24 Eng. L. & Eq. 513. 2 Post, §§ 164, 130, 143. 3 * Reg. v. United Kingdom Electric Telegraph Company, 9 Cox, C. C. 174; 3 F. & F. 73, 8 Jur. N. S. 1153. The case is of so much importance that we have ventured to insert the leading opinion on the final hearing in full bench. Crompton, J. “The defendants were indicted for erecting their posts on a high VOL. I. 26 * 198 road, so as to obstruct the public in the use thereof, and we determined before giving judgment to hear the case of Regina v. Train, thinking it possible that the same question might there arise, or that something, at all events, throwing light upon it might be elicited during its progress. Having heard that case, there is nothing to prevent our giving judgment without further delay. My brother Martin laid down two propositions, and the question is, whether either of them constitutes a misdirection. The first of these propositions was as follows: 'In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences, one on each side, the right of passage or way primâ facie, and, unless there be evidence to the contrary, extends to the whole space between the fences; and the public are entitled to the use of the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.' Now, this seems to us a very proper direction. It is urged by Mr. O'Malley that this ruling is not applicable to a place where there is a considerable portion of greensward on either side of the metalled road, which either the owner of the adjoining freehold or the lord of the manor would be entitled, if he thought proper, to enclose. This is the first of two objections taken on behalf of the defendants. But it seems to me that my brother Martin carefully guards against that. He says, that primâ facie the space between the fences is to be taken as the highway; and this seems to be in accordance with the judgment of Lord Tenterden, C. J., in Rex v. Wright, 3 B. & Ad. 681, where he says: "I am strongly of opinion, when I see a space of fifty or sixty feet through which a road passes, between enclosures set out under an act of Parliament, that, unless the contrary be shown, the public are entitled to the whole of that space, though, perhaps, from economy, the whole may never have been kept in repair.' The same principle is involved in the decision in Williams v. Wilcox, and my brother Martin seems to have laid down the law in unison with these cases. He says, 'that primâ facie, and in absence of evidence to the contrary, the public are entitled to the right of passage over the whole, and are not confined to that part which is metalled for the better convenience of travellers and traffic.' Mr. O'Malley was unable, when invited, to say to what definite portion of the road, metalled, or otherwise, he held the public to be entitled. He, however, contended that the posts might have been erected on what was in fact no part of the highway, such as a rock, or something of that kind, which might occupy part of the space between the fences, but over or across which no road could possibly exist. But this would not be a part of the highway any more than a house similarly placed, built before the dedication of the road. We think, therefore, on the first point, the direction of the learned judge was correct, and that the right of the public extends over the entire highway. “ The second proposition laid down by the learned judge is a wider one, and it remains to be seen whether it amounts to a misdirection. It is, 'that a permanent obstruction erected on a highway, placed there without lawful authority, which renders the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law; and that if the jury believed that the defendants placed, for the purposes of profit to themselves, posts, with the object and intention of keeping them permanently there, in order to make a telegraphic communication between distant places, and did permanently keep them there, and the posts were of such size and dimensions and solidity as to obstruct and prevent the passage of carriages, and horses, or foot passengers upon the parts of the highway where they stood, the jury ought to find the defendants guilty upon this indictment; and that the circumstance that the posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or that the jury might think that sufficient space for the public traffic remained, are immaterial circumstances as regards the legal right, and do not affect the right of the crown to the verdict.' This appears to us also to be substantially a proper direction, inasmuch as the real question is, whether there was a practical, as distinguished by myself in Regina v. Russell, from a mathematical nuisance. My brother Martin appears distinctly to have raised that point, by saying that the posts must be of such size, dimensions, and solidity as to obstruct and prevent the passage of carriages and horses and foot passengers at all. In Regina v. Russell, the jury found there was no practical obstruction; but where there is a practical obstruction on a highway, by which the public are prevented from using it, that is a nuisance according to all definitions of the word, and it makes no difference whether or not enough be still left unobstructed for the use of the public; or whether the obstruction is placed on that part of the road which is neither metalled nor repaired for the purpose of traffic. In Rex v. Wright, Lord Tenterden laid it down that the public are entitled to the entire space on either side of the highway, as he says, for the benefit of air and sun. We must take it now that the jury found the defendants guilty upon these facts, and that the posts were of such size and solidity as to create an obstruction, and amount to a nuisance. It was further objected by Mr. O'Malley that certain of the posts appeared actually to have stood upon parts of the road which were inaccessible to travellers; but supposing this to be the case, it would be no use to the company to have these few isolated posts left standing at different spots along the line of road; and if they wished to keep them, they should have contended at the trial that some of these posts did not come within the rule laid down by the learned judge. We think, therefore, that with respect to these few posts, which may possibly have excepted from the rule, it would be useless to grant a rule.” SECTION VI. Duty in regard to substituted Works. 1. Bound to repair bridge substituted for ford, | 3. The extent of this duty as applied to or to carry highway over railway. bridge and approaches. 2. The same rule has been applied to drains, substituted for others. § 110. 1. Where a public company, as a navigation company, under the powers conferred by the legislature, destroyed a ford and substituted a bridge, it was held, that they were liable to keep the bridge in repair. So, too, where such company cut through a highway, rendering a bridge necessary to carry the highway over the cut, the company are bound to keep such bridge in repair.2 2. So, where a navigation company had power to use a public drain, by substituting another, or others, it was held that the company were bound to keep in repair the substituted drains, as well as make them.3 3. Under the English statute, where the company carried the highway, by means of a bridge, over the railway, it is bound to maintain the bridge; and all the approaches thereto in repair, and such repair includes not only the structure of the bridge, and the approaches, but the metalling of the road on both.5 But this will not include the road beyond where it may properly be regarded as forming an approach to the bridge. 1 Rex v. Inhabitants of Kent, 13 East, 220; Rex v. Inhabitants of Lindsey, 14 East, 317. 2 Rex v. Kerrison, 3 M. & Sel. 526. This duty may be enforced by indictment. Regina v. Ely, 19 L. J. (M. C.) 223. And the same obligation rests upon the assignees of the company. Penn. Railw. Co. v. Duquesne Borough, 46 Penn. St. 223.. Priestly v. Foulds, 2 Railw. C. 422; 2 Man. & Gr. 175. 4 8 and 9 Vict. c. 20. 5 Newcastle, &c. Turnpike Co. v. North Staf. Railw. 5 H. & N. 160. 6 W. & L. Railw. v. Kearney, 12 Ir. Com. L. 224; Fosberry v. Waterford & Limerick Railw., 13 Ir. Com. Law, 494; London & North Western Railw. Co. . Skerton, 5 B. & S. 559. |