Opinion
12-18-1895
NEWARK & H. R. CO. et al. v. NEW JERSEY TRACTION CO. et al.
E. Q. Keasbey, for the motion. Cortlandt Parker and Wayne Parker, contra.
Bill by the Newark & Hudson Railroad Company and another against the New JerseyTraction Company and another, to enjoin defendants from laying rails upon a bridge constructed and maintained by complainants. An order was made to show cause why a preliminary injunction should not issue. Order discharged.
E. Q. Keasbey, for the motion.
Cortlandt Parker and Wayne Parker, contra.
McGILL, Ch. The object of this suit, primarily, was to enjoin the defendants from laying rails upon a bridge constructed and maintained by the complainants, in conducting Kearney avenue, in Kearney township, in the county of Hudson, over the right of way of the Newark & Hudson Railroad Company, for use by street, horse, or electric cars, and from operating such cars over the bridge until the defendants should suitably strengthen the bridge. The bridge was constructed and is maintained in virtue of the duties imposed by the eleventh section of the "Act to incorporate the Newark & Hudson Railroad Company," approved March 17, 1870 (P. L. p. 1274), which provides "that it shall be the dutv of said company to construct and keep in repair, good and sufficient bridges or passages over or under the said railroad, where any public or other road shall cross the same, and to alter or grade the said road, so that the passage of carriages, horses and cattle passing and repassing, shall not be impeded thereby." The insistment of the complainants is that the duty, in construction and maintenance of the bridge, imposed had reference only to a bridge suitable to accommodate the uses to which the highway was then ordinarily devoted, to wit, as indicated in the requirement of the charter concerning the approaches to the bridges or passages, by "carriages, horses, and cattle, passing and repassing," assuming carriages to mean wagons ordinarily in use upon roads at the time when the charter was enacted. The bill claims that the use of the bridge by rails, upon which shall be operated horse cars, or electric cars, much heavier than horse cars, and with capacity to run at greater speed, is not such use as the charter contemplates that the bridge must be sufficient to subserve, and that the shock and strain which such use will subject the bridge to will continually rack and weaken it, and cause additional expense in its maintenance, which, if permitted, will work continuing damage to the complainants. The bill was filed on the 11th of August, 1892, and thereupon an order to show cause why a preliminary injunction should not issue in accordance with the prayer of the bill was made, returnable August 16th, in the same year, which order contained an ad interim restraint, forbidding the operation of electric motors or cars over the bridge. The parties did not respond to the order to show cause upon its return day, but, by arrangement between themselves, suffered the suit to lie dormant until after a lease by the defendant of its roads and franchises to the Consolidated Traction Company, in January, 1894, and until the latter company obtained permission to intervene as a defendant in the suit. That permission was obtained in August, 1895, and in September, 1895, the Consolidated Traction Company, and in October of the same year the New Jersey Traction Company, answered the bill, and later gave notice of motion to discharge the order to show cause. While the case was dormant, the defendants laid rails over the bridge which were suitable for electric cars, and over them they have operated horse cars for some time. The Consolidated Traction Company proposes presently to run electric cars over the bridge in the place of the horse cars, and although, by its terms, the restraint of the order to show cause expired on the 16th of August, 1892, in deference to some agreement of the parties, which is not part of the record in the case, it now moves co have that order discharged by the judgment of this court, thereby presenting the question which has been argued, whether the complainants shall have the preliminary injunction they sought in 1892.
The answers insist that the Consolidated Traction Company has been duly authorized by law to operate electric cars through Kearney avenue, including that part of the avenue which is carried over the complainants' right of way by the bridge which they are bound to maintain. Their claim is that whatever uses the highway may be lawfully subjected to must be accommodated by the bridge as maintained by the complainants. This contention contemplates, not only the uses of a highway which were recognized when the charter of the Newark & Hudson Railroad Company imposed the duty of maintaining the bridge upon that company, among which was the horse-car railway, but also the electric railway, a new use, equipped with cars fashioned in appearance and size after the horse car, but by reason of their machinery each weighing two or three times as much as a horse" car, and through the electric force capable of twice or three times the speed of a horse car, both of which railway uses, within the limits indicated, have been recognized by this court as not imposing an additional servitude upon the land in the highway subject to the public easement. Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; West Jersey R. Co. v. Camden, G. & W. Ry. Co., 52 N. J. Eq. 31, 29 Atl. 423. Pursuing this claim, the answers do not controvert an allegation of the bill that the bridge is not sufficiently strong to maintain its use by electric cars, but the answer of the Consolidated Traction Company, accepting the allegation as true, by way of cross bill, asks a decree that the complainants may be compelled to strengthen the bridge so that it will serve the contemplated use. Whether the relief thus sought can be had in this court, or must be sought by mandamus, is not now the inquiry.
The proposition upon which claim to the preliminary injunction sought must rest is that, for use by the defendants' electric cars, the complainants are not bound to maintain the bridge. The solution of that proposition involves, not only the determination of the extent of the duty which the eleventh paragraph of the charter of the Newark & Hudson Railroad Company imposes, but also what duty is due from the defendants, who, by the legislation under which they take their powers, or as an incident to the exercise of their powers which the law imposes, may, as insisted at the argument, be bound to bear the expense of such structural changes in the existing highway, including strength to the bridge, as may be necessary to safely and properly accommodate the use to which they propose to put it. The inquiry is important, and, as yet, is unsettled by adjudication. The right of the complainants to have the bridge protected against use by the defendants' electric cars, until the defendants shall strengthen the bridge, is not clear. Thus the case is within the well-settled rule that where a complainant's right, of which protection is sought in limine by an interlocutory injunction, is in doubt, the preliminary injunction will not be allowed. Hagerty v. Lee, 45 N. J. Eq. 255, 17 Atl. 826. It is clear that the duty to make safe and maintain the bridge lies upon one or the other, or both, of the parties, and the responsibility for neglect of that duty must rest also in the same way. I will grant the motion to dismiss the order to show cause.