Opinion
12-11-1891
INHABITANTS OF TOWNSHIP OF RARITAN v. PORT READING R. CO.
H. Brewster Willis and Charles L. Corbin, for complainants. John R. Emery, for defendant.
(Syllabus by the Court.)
Application of the inhabitants of the township of Raritan for an injunction to restrain the Port Reading Railroad Company from erecting in a public high way abutments for a bridge to be built by defendant. Order to show cause. Writ denied.
H. Brewster Willis and Charles L. Corbin, for complainants.
John R. Emery, for defendant.
MCGILL, Ch. The defendant railroad company is erecting in the public highway known, as "Smith Road" two abutments 25 feet apart and about 75 feet long and 6 feet wide, upon which it proposes to erect a bridge for its railroad over the highway. At the point where the bridge is to be erected the entire width of the road is 50 feet, and the part in actual use by vehicles is about 12 feet wide. It is not even pretended that to enable the defendant to bridge the highway it is necessary to place the abutments in the road. On the contrary, it plainly appears that the abutments are to be placed close to each other in the highway merely because it will be less expensive to build such a bridge than to erect one with a 50-foot span. The width between the abutments and the height of the bridge will be sufficient to accommodate the uses to which the road is at present put. The questions presented are: First, whether the defendant has authority to obstruct the road by placing therein abutments, when such occupancy and obstruction is not necessary to its crossing; and, second, whether this court will, at the instance of the complainants, interfere by injunction to prevent such an occupancy and obstruction of the road.
The defendant is incorporated under the general railroad law, and by that statute acquires whatever rights it possesses in crossing highways. That it may cross a high way cannot be questioned. That right is given by implication from the bare authority to build a railroad connecting distant points between which there exist highways that must be crossed, and as well from expressions in the statute which assume its existence; and, as it is impossible for a railroad to cross a highway without some incidental interference with it, such interference is also of necessity made lawful. These rights, however, must be limited to the necessity of the railroad in crossing. The courts will not assume that any authority in a highway is given except that which the statute plainly indicates, either in express terms or by clearly necessary implication, for every interference with the highway is an encroachment upon a pre-existing public right, which can only be tolerated when the law clearly sanctions it. "Public highways," said Chief Justice Whelpley in Railroad Co. v. State, 29 N. J. Law, 353, "ought not to be destroyed, even in part, under pretense of legislative authority, unless it be conferred either in express terms or by necessary implication. If the words are ambiguous, the construction ought to be in favor of the common highway; not against it." In Attorney General v. Railroad Co., 9 N. J. Eq. 558, Mr. Justice Potts put the principle so well stated by Chief Justice Whelpley as follows: "All grants of special privileges are to be construed strictly against the grantees and literally in favor of the public, and he who claims authority to impair or obstruct this right [right of navigation] by legislative grant must show it by clear and explicit terms of the grant itself, or at least by necessary implication." The general railroad law, § 102, (Revision, 929,) amended in 1882, (Supp. Revision, p. 828, § 19,) and again in 1887, (P. L. 226,) provides that it shall be the duty of a railroad company organized under that act "to construct and keep in repair good and sufficient bridges and passages over, under, and across the said railroad * * where any public or other road * * * now or hereafter laid shall cross the same, * * * of such width and character as shall be suitable to the locality in whichthe same are situated, * * * so that public travel shall not be impeded" by the railroad. It is insisted that this provision authorizes any encroachment in crossing a highway which will leave a sufficient passage to accommodate public travel in the highway at that point; that the force of the words, "width and character as shall be suitable to the locality," is to give authority to the railroad company to appropriate and narrow the public highway, where it crosses or is crossed by the railroad, to its own uses, provided a passage adequate for public accommodation be left. The case of People v. Railroad Co., 89 N. Y. 266, is cited in support of this insistment. In that case it was held that, under a provision of law that in crossing a public highway the railroad company should restore "the highway, as near as may be, to its former state, so as not unnecessarily to impair its usefulness," the railway company might erect a bridge over its railway narrower than the highway, if the bridge, when built, should be adequate for the public accommodation. I do not think that the insistment is sound, for I fail to find in the statute any expression of legislative intent to invest the railway company with the right to go into unnecessary permanent occupation of any portion of the highway. The case just cited treats of the exercise of the duty of restoration when the highway has been necessarily, and, therefore, lawfully, injured, and not of the right to injure it in the first instance. If a railroad cross the highway at grade, its rails must necessarily obstruct the road; so, if it cross below grade, the necessary cut will be a barrier to. public travel; so, also, it may be, after a railroad is built across a highway at grade, the frequency of trains or multitude of tracks will render it necessary for public safety and convenience that the highway shall be passed under the railroad. In each of these cases a passage must be provided to take the place of that which has necessarily been taken away or obstructed. To remedy the injury which the railroad thus does, an active duty is contemplated. The railway company must "construct" a bridge or passage. It is when it is called upon to perform this active duty that the bridge or passage may be of a width suitable to the locality. The duty extends to two classes of cases,—where a highway, necessarily injured in building the railroad, is to be restored; and where a road is laid across a railway after the latter has been built. It will not be necessary at this time to consider the latter class of cases. The purpose of imposing the duty, in reference to the former class, is to secure a substitute for that which is necessarily and lawfully taken away, and the law requires no more than that such substitute shall be sufficient to accommodate public travel at its location. If the substitute shall not originally be made of equal capacity with the highway, it must, from time to time, be enlarged, as public accommodation demands, until it shall reach the full capacity of the road. Railroad Co. v. State, 32 N. J. Law, 220. From the mere imposition of this duty no authority to permanently occupy any portion of a highway is to be implied. The law contemplates, as has been said, simply a restoration to the public after a lawful entry upon an existing highway; and it carries with it no right save that which is incidental to its exercise. I think that such is plainly the scheme of the statute considered. It may be summarized in the statement that the railroad company's right in a high way crossed is restricted to its necessity, and its duty in making reparation for its injury is measured by the necessity of the public from time to time. I do not perceive that the law gives any authority to a railroad company determining to cross an existing highway above its grade to encroach upon it merely for the purpose of cheapening the construction of its railroad. Saving to the railroad company is not such necessity as the statute contemplates. When the railroad is so built as to cross a highway above its grade it must bridge the entire width of the highway, whatever the expense may be. By a supplement to this law, passed April 24, 1890, (P. L. 273,) the legislature has practically recognized this interpretation of the statute, for by that supplement it assumes that in a crossing by bridge obstructions cannot be placed in the high way, and gives authority to place piers at the outer edge of the wagon-way if the railroad company shall give, from its own land behind the piers, an equivalent for that which they shall occupy.
But will this court, at the instance of the complainants, interfere by injunction to prevent the proposed obstruction of the road in question. The right of the complainants to maintain such a suit as this has been settled in this state. Greenwich Tp. v. Railroad Co., 24 N. J. Eq. 217, on appeal, 25 N. J. Eq. 565. The jurisdiction of courts of equity to redress the grievances of public nuisances is established beyond doubt, but at the same time it is also settled that, in absence of some special and urgent reason, equity will not exercise that jurisdiction where the object sought may be as well attained in the ordinary tribunals; and, where the grievance is a misdemeanor subject to indictment, equity will interfere with great reluctance, even though its intervention be sought by the attorney general, and then only to prevent a very serious public injury. Attorney General v. Railroad, etc., Co., 3 N. J. Eq. 136; Attorney General v. Heishon. 18 N. J. Eq. 413; Attorney General vgoodwill. Brown, 24 N. J. Eq. 90; Attorney General v. Railroad To., 27 N. J. Eq. 26; Inhabitants v. Inslee, 37 N. J. Eq. 397. This case does not present such an injury. The obstruction by the abutments will not seriously impede public travel. It has been shown that the travel over the highway in question is merely nominal; that the roadway in use consists of a single wagon track; that the highway on each side of this wagon track, where the abutments are being erected, is overgrown by underbrush and weeds; so that, for all practical purposes, the 25-foot space between the abutments will be ample for the public accommodation at present, and perhapsfor years to come. The remedy by indictment is sufficient to abate the nuisance, and to restore to the public use the entire highway. Smith v. State, 23 N. J. Law, 130; State v. Railroad Co., Id. 360; Freeholders v. State, 42 N.J. Law, 263; State v. Addy, 43 N. J. Law, 115. The most grievous hardship in withholding injunction at this time will, in case of indictment and judgment of abatement thereon, fall upon the defendant, now deliberately resisting the issuance of that writ, upon the very ground that there exists this ample remedy against it. The public, without more than nominal injury, can wait until such a judgment is had. The order to show cause will be discharged, but without costs.