§ 108. 1. By the general English statutes upon the subject of railways, it is provided, "that if the line of the railway pass any turnpike-road, or public highway, then, (except when otherwise provided by the special act,) either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge."1

2. And by § 47 it is provided, that whenever the railway does pass any such road, upon a level, the company shall maintain gates, at every such crossing, either across the highway, or the railway, in the discretion of the railway commissioners, and employ suitable persons to tend the same, who are required to keep them constantly shut, except when some one is actually passing the highway, or railway, as the case may be.2

3. And where a railway passes a highway near a station, on

1 Railway Clauses Consolidation Act, § 46. Mandamus requiring the company to carry their road over a highway, by means of a bridge, when that was the only mode in which it could be done, according to the level of the line of the railway at the time, was held bad. Southeastern Railw. v. The Queen, 17 Q. B. 485.

A road on which toll-gates are erected and tolls taken is a turnpike road. The Northam, B. & Roads Co. v. London & Southhampton Railw., 6 M. & W. 428; 1 Railw. C. 653; Regina v. E. & W. I. Docks Railw. Co., 2 El. & Bl. 466.

a level, the trains are required to slacken their speed, so as not to pass the same at any greater speed than four miles an hour.3

4. The right to raise or lower highways, in the construction of a railway, does not authorize the company to change the course of the highway, even with the consent of the town council, and for so doing the company were held liable to persons who had sustained special damage thereby.*

5. The right to use "highways" in the construction of plank roads, contained in a general law, does not extend to military roads constructed by the United States, while the state was a territory, but the legistature may grant such right, by the charter of the company.

6. And where a mandamus recited that the railway, which defendants were empowered to make, crossed a certain public highway, not on a level, by means of a trench, twenty feet deep, and sixty-five feet wide, through and along which the railway had been carried, and the highway thereby cut through and rendered wholly impassable for passengers and carriages; and that a reasonable time had elapsed for defendants to cause the highway to be carried over the railway, by means of a bridge, in the manner pointed out in the statute, and commanded defendants to carry the highway over the railway, by means of a bridge, in conformity with the statute, particularly specifying the mode, it was held, that it not being otherwise specially provided in the company's charter, they had, by the general act, an option to carry the highway over the railway, or the railway over the highway, by a bridge; and that the option was not determined by the facts alleged in the writ, and the judgment of the Ex

*

3 § 48. Some similar provisions, in regard to the construction of railways in this country, seem almost indispensable to the public security. But the rage for cheap railways is so great, that nothing of the kind could be effected, we fear, at present.

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Hughes v. Providence & Wor. Railw., 2 R. I. 493. It is the duty of a railway company not to obstruct public roads, where they intersect the railwaytrack, either by stopping a train or otherwise; and the company must take the consequences of all such obstructions. Murray v. Railw. Company, 10 Rich.

227.

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Attorney-General v. Detroit & Erie Plank-Road Co., 2 Mich. 138.

6 Regina v. The Southeastern Railw., 15 Q. B. 313; s. c. 6 Eng. L. & Eq. 214. 7 8 and 9 Vict. c. 20.

chequer, awarding the writ, was accordingly reversed in the Queen's Bench.

7. Where the charter of a railway authorized them, by consent of the commissioners, to alter a highway whenever it became necessary in order to build the railway in the best place, and required the company to maintain all bridges made necessary to carry the highway over the railway: It was held that the company had no power to alter the course of the highway in order to avoid the expense of building a bridge; and that the old highway was still subsisting, notwithstanding the attempt thus to lay out a substitute.8

8. And where a railway company, under their statutory powers, in England, carry a highway over their road by means of a bridge, the company is bound to keep both the bridge and the road and all the approaches thereto in repair, and such repair includes not only the structure of the bridge, but the superstructure, and every thing requisite to put the highway in fit condition for safe use.9

9. Where the proprietors of land, through which a railway company were empowered to take the right of way, had the right to lay branch railways upon the lands adjoining, and to connect them at proper points with the main line, so as not to endanger the safety of persons travelling as passengers upon the railway, and in case of difference in regard to any of these points, the same to be determined by two justices of the peace; but the company were not required to admit any such branch to connect

8 Norwich & Worcester Railw. v. Killingly, 25 Conn. 402. Nor have the company any right under such a power to materially and essentially change the route of a highway, that being a power resting solely in the discretion of the municipal authorities. Warren Railw. Co. v. State, 5 Dutcher, 393. See also Veasie v. Penobscot Railw. Co., 49 Me. 119.

North Staffordshire Railw. Co. v. Dale, 8 Ellis & BI. 835. But where the expense of keeping a bridge in repair was imposed by statute upon several towns, and a railway company, jointly, with a provision that the municipal authorities of one of the towns shall have the care and superintendence of the same, "and shall employ all services necessary in the care thereof," it was held this did not impose any special obligation upon that particular town, in regard to the repairs, but that all the parties still remained jointly responsible for the performance of that duty, and that the municipal authorities of this town were thereby made the agents of all the parties thus responsible; and that therefore one of the parties could not maintain an action against the town for an injury through the joint neglect of all the parties. Malden & Melrose Railw. v. Charlestown, 8 Allen, 245.

with their line, at any place where they should have erected any station or other building; it was held that the consent of the company to unite with the line at a station was not in the nature of a license and could not be revoked.10

10. And where the owners or occupiers of adjoining land had the right to build railways, and to cross the line of the principal railway, without being liable to toll or tonnage, it was held the owners of such railways might use them as common carriers of freight and passengers.11

11. It has been held that railway companies are responsible for injuries, resulting from the dangerous state of highways, caused by their own works, as where one fell into a culvert, made by the company at a highway crossing, to prevent the accumulation of the water, it being invisible at the time by reason of snow.12 So also in all cases where the defect in the highway is caused by the works of the railway company the latter will be responsible for all injuries in consequence, although the party might also obtain redress of the town bound to maintain the highway.13

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.14

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.15

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 10 Bell v. Midland Railw. Co., 3 De G. & Jones, 673.

11 Hughes v. Chester & Holyhead Railw. Co., 8 Jur. N. S. 221.

12 Judson v. N. Y. & N. Haven Railw. Co., 29 Conn. 434.

13 Gillett v. Western Railw., 8 Allen, 560.

14 Commonwealth v. Hartford & New Haven Railw., 14 Gray, 379.

15 Old Colony & Fall River Railw. v. County of Plymouth, 14 Gray, 155.

the right of way to be used by them at the point where the highway is laid.16 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.17

SECTION V.

Rights of Telegraph Companies.

1. Right to "pass directly across a railway," does not justify boring under it.

2. Exposition of the terms "under" and across."

3. Erecting posts in highway a nuisance, even if sufficient space remain.

n. 4. Opinion of Crompton, J.

§ 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

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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. 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

16 Boston & Maine Railw. v. City of Lawrence, 2 Allen, 107.

17 Commonwealth v. Haverhill, 7 Allen, 523.

1 Southeastern Railw. v. European & Am. Tel. Co., 9 Exch. 363; s. c. 24 Eng. L. & Eq. 513.

2 Post, §§ 130, 143, 164.

3

Reg. v. United Kingdom Electric Telegraph Company, 9 Cox. C. C. 174; 3 F. & F. 73, 8 Jur. N. S. 1153.