wardly through that street to Broadway and other thoroughfares of the borough. There was clear and cogent proof of acceptance of the dedicated street by the public, but such acceptance was not necessary to cut off the owner from the power of retraction, and subject the street to the public use. The right of the public to appropriate the lands to the public use at any future time, when their wants or convenience require it, attaches immediately on dedication. Neither

the lapse of time nor the act of the municipal government can impair the public right to take possession of a dedicated street. The legislature alone has the power to release the dedicated lands and discharge the public servitude. Trustees of M. E. Church v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696; Hoboken Land & Improvement Co. v. Same, 36 N. J. Law, 540; City of Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 547; Price v. City of Plainfield, 40 N. J. Law, 608. There was therefore no error in the court below in refusing to charge the first two requests made by the defendant.

The third request-that if part of Henry street had not been opened, worked, or used for more than 20 years prior to March 24, 1859, such part was vacated, in virtue of the seventy-eighth section of the road act-re mains to be considered. That question was distinctly presented and passed upon by this court in Humphreys v. Mayor of Woodstown, 48 N. J. Law, 588, 7 Atl. 301. In the trial court the like request was made in that case and refused. This court, by a unanimous vote on the review, said: "The proposition contained in the request is not the law. The section in the road act just cited [section 78] refers to cases where no part of the road laid out has been opened and used. A road may be opened, used, and worked throughout its entire length, and yet not used and worked on every foot of its entire breadth; and if the locus in quo, being within the lines of the road, was not actually passed over by the wheels of vehicles, it would not thereby be vacated. It has been settled in this state that encroachment on a highway cannot be legalized by lapse of time. If the public once acquired a right to any part of a road, it cannot be lost by negligence of public officers." Dedication of a street is a dedication of it in its entirety. The equivalent which the donor receives is presumably the benefit he may derive from it when accepted by the public. Manifest injustice might be done to the donor, and he might be deprived of any substantial advantage, if the public could se lect and accept a fraction of the street, and reject the balance. An acceptance of part must constitute an acceptance of the whole.

To avoid misconception, it is proper to observe: First. That the burden of proof is on the defendant to show affirmatively the 50 A.-24

nonuser for 20 years prior to 1859. There is absence of evidence upon that point. Second. It is not necessary to determine whether the seventy-eighth section of the road act applies to a dedicated street, and it is not intended to express any opinion on that subject.

No error appearing in the trial below, the judgment is affirmed.

(62 N. J. E. 601)

INHABITANTS OF PALMYRA TP. v. PENNSYLVANIA R. CO.

(Court of Chancery of New Jersey. Oct. 28, 1901.)

RAILROAD CROSSING-GATES-CONSTITUTIONAL LAW-VESTED RIGHTS LEGISLATIVE DUTIES-JURISDICTION OF COURT OF CHAN

CERY.

The statute of March 16, 1898 (P. L. 1898, p. 110), authorizes the governing body of a township, when it shall be of opinion that gates, etc., should be erected at a specified grade crossing of a highway, to pass an ordinance directing an application by petition to this court for a summary inquiry to decide whether a flagman, or gates and bars, etc., should be provided by the railroad company at that particular crossing for the security of human life, etc. Such an ordinance has been passed, petition filed, and hearing had, as to the Pennsylvania Railroad Company's crossing of Cinnaminson avenue, in the township of Palmyra. On the inquiry it is found as a fact that the railroad company has so located its station house building that Cinnaminson avenue crossing has been made additionally dangerous. On this showing of the fact it is held:

1. That the statute of March 16, 1898, is not an impairment of any contractual right vested in the Camden & Amboy Railroad Company by its charter (P. L. 1829-30, p. 83), under which the Pennsylvania Railroad Company is operating by lease.

2. The statute of March 16, 1898, does not confer upon this court the exercise of a power which properly belongs to the legislative department of the government of this state, and is not obnoxious to article 3, § 1, of the constitution of this state.

3. The powers conferred upon this court by the statute of 1898 do not intrude upon those which inherently belong to the supreme court of this state.

4. The authority given by the statute of 1898 to this court is consistent with its general equity jurisdiction, and accords with its modes of procedure, and in the case under consideration may rightfully be exercised.

(Syllabus by the Court.)

Petition by the township committee of Palmyra for an order to compel the Pennsylvania Railroad Company to erect gates at certain crossings. Granted.

This is a petition filed by the township committee of Palmyra township, Burlington county, praying that the Pennsylvania Railroad Company may be ordered to erect gates to protect travel across its tracks at Cinnaminson avenue, in that township. The application is made under the law of March 16, 1898 (see P. L. 1898, p. 110), which authorizes the governing body of any township, when it shall be of opinion that it is neces

sary for the security of human life, or the protection of the public, that gates should be erected across a public road, where it is crossed by a railroad track at grade, or that a flagman should be there stationed to give notice of approaching trains, or that some other reasonable provision for protecting such crossing should be adopted, to pass an ordinance authorizing and directing application to be made by petition to this court for such order as it may deem necessary in the premises. The statute directs this court, after notice given to the railroad company, to proceed in a summary way to investigate the circumstances of the case, and to decide whether such protection is necessary, and to make an order that a flagman, or gates and bars, or some other reasonable provision for protecting such crossing, should be adopted by such railroad company. The railroad company is directed to comply with such order, and compliance may be enforced by the appropriate process of this court. The court shall decide what, if any, portion of the expense of establishing gates and maintaining a flagman shall be borne by the municipality.

The township of Palmyra adopted such an ordinance, and has filed its petition by its township committee, alleging that the village of Palmyra has a population of 2,300; that the tracks of the Amboy division of the Pennsylvania Railroad Company run through it for 6,271 feet; that all the village streets cross the tracks at grade, and none are protected by gate or flagman; that Cinnaminson avenue is the principal street of the village, and crosses the railroad right of way west of its station; that stores, buildings, and improvements are located on both sides of the tracks; that large numbers of teams and people are compelled to and do cross the tracks at Cinnaminson avenue; that the railroad company runs four express trains and great numbers of freight trains which do not stop at Palmyra; that a grove of trees and the railroad station itself obstruct the view of persons about to cross the tracks; that the petitioner is of opinion that it is necessary for the security of human life and the protection of the public that gates should be erected across Cinnaminson avenue at the railroad crossing, or that a flagman should be there stationed to give notice of approaching trains, or that some other reasonable protection should there be provided; and prayer is made for an investigation of the circumstances of the case, and for an order accordingly. Upon the filing of this petition, an order to show cause was made for a hearing by oral proof, in a summary way.

The railroad company filed an answer to the petition, admitting the frequent running of its trains over the crossing at Cinnaminson avenue, but alleging that, as to those express passenger trains which did not stop at Palmyra, it caused its agent there "to flag the crossing over Cinnaminson avenue during the time said trains pass over said cross

ing"; that the nonstopping freight trains principally run at night. It denies that at Cinnaminson avenue there is no protection. Alleges that, because of a wide street beside the right of way, a clear and unobstructed view up and down the railroad can be obtained of approaching trains; that the crossing in no wise endangers human life, and needs no additional protection for the public than is afforded by the law requiring the giving of the statutory signals on approaching a crossing. The railroad company's answer further refers to the charter granted to the Camden & Amboy Railroad Company in 1830 (P. L. 1829-30, p. 83), under which, and subsequent consolidations and leases, it is now operating its railroad, and sets up the privilege given under that act to cross at grade streets along its route, and avers that Cinnaminson avenue is one of the streets so crossed by its railroad tracks, and that a passage has been there constructed and maintained over said street as required by said charter; that the legislature has prescribed certain precautions in approaching grade crossings, as to blowing whistles and ringing a bell, which its trains have always observed on approaching Cinnaminson avenue. The railroad company before the hearing amended its answer by averring that it had always discharged its legal obligations in the premises; that, if there is in fact any unusual danger at the Cinnaminson crossing, it was not occasioned by any act done in the location and construction of the railroad, its buildings or works, and that such unusual danger is chargeable wholly to the subsequent growth and building up of that locality. The company insists that, under such circumstances, no further obligation rests upon it than the statutory blowing of a whistle and the ringing of a bell, and that such is the true construction of the act of March 16, 1898; that any other construction of that statute would be an assumption by this court to "exercise a function not judicial, but legislative, in its nature, and obnoxious to article 3 of the constitution of this state, incapable of being conferred upon, or exercised by, this honorable court, or by any person belonging to the judicial department of the government of this state; that said statute to that extent would be and is unconstitutional and void; and the railroad company asks the same benefit as if it had demurred to the application of the township of Palmyra." The matter was subsequently heard upon oral examination and cross-examination of witnesses, and the exhibition of proven maps and photographs of the locus in quo.

Thomas E. French, for petitioner. J. H. Gaskill and Alan H. Strong, for respondent.

GREY, V. C. (after stating the facts). The proofs taken in the summary hearing of this matter show the circumstances at the Cin

naminson crossing at Palmyra to be as follows: The railroad of the defendant company crosses Cinnaminson avenue at grade. There is no other laid-out road which crosses the railroad in the village, nor at any nearer point than one-half to three-quarters of a mile. There are places where people do cross at several points, but none of them are recognized as laid-out crossings. The testimony is that there is a population of about 3,000 in the village, the bulk of which, probably two-thirds, resides on the north or river side of the railroad. A considerable part of the population, about one-third, resides on the south side of the railroad. On that side are several stores, the town hall, public school house, and other buildings. The local travel across the railroad tracks is considerable. Children going to and from school cross in great numbers. In addition to this crossing by the local residents is the highway travel from the surrounding country. Cinnaminson avenue is a stone road connecting with several other roads, over which many wagons travel to and from Camden. The neighboring country is what is known as a "trucking" district, and supplies the Philadelphia market by wagon, carrying vegetables and fruits, a great part of which passes along Cinnaminson avenue, and crosses the railroad at grade. Within a few years the railroad company erected a new station house, at the northeast corner of Cinnaminson avenue and South Broad street, parallel with and adjoining its west-bound tracks. This station house is about 60 feet long, and one story high, the peak of the roof being about 20 feet from the ground. The station house proper is surrounded by a roofed platform. At the southwest corner of Cinnaminson avenue, but apparently off the railroad property, is a grove of large trees, standing some 20 or 30 feet apart, nearly up to the street line. The railroad company has a railing or fence on the south side of its tracks, on its right of way, on each side of Cinnaminson avenue and parallel to it, obviously put there to compel passers on that avenue to stay on the avenue in crossing the railroad tracks.

In the month of April an observation taken for six days showed an average of 1,100 per day of wagons, bicycles, and people crossing the railroad at Cinnaminson avenue between 6 o'clock in the morning and 6 at night. The testimony of the assistant train master is that there is an average of 60 trains in every 24 hours which cross Cinnaminson avenue. Five express passenger trains, all in the daytime, scheduled at a speed of 40 miles an hour, run by Palmyra without stopping. The other passenger trains, which stop at Palmyra, run at a speed of about 20 miles per hour. The extra freight trains run at 15 miles, and the other freight trains at 10 miles, an hour. An examination of the accompanying reduced copy of plan offered in evidence will show the location of the sta

TOWN HALL

LARGE

TREED

AVENUE

S. BROAD STREET

It will be noted from the diagram that the station itself is an obstruction to the view of persons coming south along Cinnaminson avenue, when they arrive at its intersection with Broad street, in looking for trains approaching from the east, traveling on the west-bound track. Several witnesses testified to the fact, and the physical conditions support their testimony. The defendant company's surveyor stated that from this point of view a train coming from the east on the west-bound track could not be seen until the passer on Cinnaminson avenue had gone far enough to clear the obstruction interposed by the station and its surroundings. In describing the approach of such a train from the east (that is, a west-bound train), and the station as an obstruction of the sight of it, by a person passing south along Cinnaminson avenue, the same witness testified that "the train would be almost on top of you before you did see it, there is so much there." These facts indicate the extent of the danger to the public at Cinnaminson avenue crossing. It is undisputed that there are no safeguards at that crossing, save that, when express trains go by, the station agent comes out and protects the crossing with a flag. For all other protection the crossers of the tracks are dependent upon the blowing of the whistle and the ringing of the bell.

The defendant company insists that it is not within the true intent and meaning of the statute of March 16, 1898, that other safeguards than the use of the whistle and the bell should be required at any crossing, "except in cases where there is an obligation or duty imposed to provide such additional protection by reason of the location or construction by such railroad company of its tracks, buildings, or works." I do not accept this view of the effect of that statute, but, if it be admitted to have the construction

stated, the evidence of the defendant company's surveyor shows that the station which stops the view of the tracks was recently constructed by the defendant company; that the center line of Broad street, just before it intersects Cinnaminson avenue, was changed to put the station there; and when that witness testified that a passer on Cinnaminson avenue, at its intersection with Broad street, would have a train approaching from the east almost on top of him before he could see it, because "there is so much there," the "so much" which he referred to is the station, which the defendant company has so located that a train approaching from the east is obscured until almost on top of a passer on the highway (Cinnaminson avenue). The "station and its surroundings," which the same witness said the passer on Cinnaminson avenue would have to clear in order to see the trains, are the defendant company's buildings, located and erected by it. Other witnesses and the lay of the ground show this to be the actual situation at that crossing.

The diagram indicates the locality where, to one passing southwardly along Cinnaminson avenue, a train coming from the east, on the west-bound track, is for a considerable distance obscured from view. The line of arrows at the intersection of Cinnaminson avenue and Broad street marks the line of obscuration, which continues until the passer on Cinnaminson avenue is almost upon the west-bound track. It therefore appears that because of the location by the railroad company of its own buildings there is an increase of the danger at the crossing under consideration, and a corresponding duty is cast upon the railroad company to furnish additional safeguards to the public at that place.

The order of the company that the station agent shall flag the 5 express trains which do not stop at Palmyra affords, of course, no protection against the 55 other trains which pass over the tracks of the defendant company at Cinnaminson crossing. The detailed circumstances attending the situation in Palmyra, at the railroad grade crossing of Cinnaminson avenue, are certainly such that, in the words of the statute of 1898, it is reasonably necessary, for the security of human life and the protection of the public, that gates or bars should be there erected or maintained.

The railroad company, however, not only denies that the existing conditions at the locus in quo require additional precautions for the safety of the public, but, by virtue of the charter of the Camden & Amboy Railroad Company, under which it is operating the railroad which crosses Cinnaminson avenue, it claims a right to cross highways along its route at grade, at a high rate of speed, upon constructing passages across its railroad, "so that the passage of carriages, horses and cattle shall not be prevented

thereby." See P. L. 1829-30, p. 88, § 15. It is insisted in argument for the defendant company that these provisions of the original railroad charter have been observed, and that they give some contractual rights to the railroad company, which have been intruded upon by the statute of 1898.

If it be true that the original charter gives to the Camden & Amboy Railroad Company, and its successors, the right to construct a railway across public highways, and imposes only a duty to build passages across the railway for horses and carriages, which, once performed, need not be changed, then not only the act of 1898, but the statutory provisions, requiring blowing a whistle and ringing a bell, must also be held to be unconstitutional impairments of the original contract, for both those requirements were imposed by subsequent enactments. The ringing of the bell was required by the act of March 9, 1839, and the blowing of the whistle by the act of March 26, 1852. See 1 Nix. Dig. 680. The effect of this requirement to build passages across public highways has been declared by our courts. The same provision, word for word, as that contained in section 15 of the Camden & Amboy Railroad charter, occurs in the charter of the Central Railroad of New Jersey. P. L. 1847, p. 133. This section was construed by the supreme court in the case of State v. Central R. Co. of New Jersey, 32 N. J. Law, 224, and the construction given entirely refutes the idea that a "once for all" construction of such railroad crossings is a compliance with the charter requirements. It was there held that the obligation to provide that horses and carriages might have safe passage across the railroad was "a continuing duty, to which the company is made subject, which in its performance must be measured by circumstances. Thus, a bridge or passageway, which at one time would be adequate to the public accommodation, might at a subsequent period, from an increase of business or population, be totally inadequate, and consequently a provision which at one juncture would be a discharge of the duty would at another almost amount to an infraction." The court also recognized the increase of the railroad's business, and the consequent danger to the public, rendering the street impassable, as imposing on the railroad company an obligation to provide additional conveniences for safe crossing, and summed up the definition of the company's duty by the declaration: "The duty prescribed is to keep at all times, and under all circumstances, the public highways, at the point where they cross the railroad, in a condition fit for safe and convenient use." This construction of the obligation imposed by the section under consideration has never been challenged, and has been followed in this court in Mayor, etc., of City of Jersey City v. Central R. Co. of New Jersey, 40 N. J. Eq. 420, 2 Atl. 262, and in Raritan Tp. v. Port Reading R. Co.,

49 N. J. Eq. 15, 23 Atl. 127. In Clark v. City of Elizabeth, 61 N. J. Law, 575, 40 Atl. 616, 737, the court of errors discussed the line of cases expository of the section in question, and approved this declaration of the duties of railroad companies at highway crossings, where the question presented involved the rights of the public.

It seems to be quite clear that under the section in question the duty of the railroad company to provide safe and efficient crossings for the public passage is a continuing one, varying at each crossing, as circumstances at that place may vary. Either growth of population and business in the neighborhood of a crossing, or the passage of large railroad trattic over its tracks where the highway crosses it, is a circumstance which I will oblige the railroad company to provide additional safeguards. The defendant company cannot, under the provisions in the Camden & Amboy Railroad Company charter, requiring it to provide passage across its tracks, maintain that such crossings were arranged once for all, thus relieving that company from all further duty in that matter.

The Pennsylvania Railroad Company further contests the constitutionality of the statute of 1898, under which the order of this court is sought. It contends that in attempting to confer upon this court the power to inquire into and determine whether such danger exists at a particular railroad grade crossing of a highway as to be detrimental to the public safety, and to direct the railroad company to place there certain additional safeguards, if found necessary, the legislature has exceeded its authority, and has imposed upon the judicial department of the government the exercise of a power that properly belongs to the legislative department, and that this statute is therefore obnoxious to article 3, § 1, of the constitution of this state.

The constitution, while requiring that the three great departments of government shall act separately, does not define, with any precision, where the limits of the functions peculiar to either begin or end. Many of these are so simple in their character as to be recognized as of course. Others are quite complex in their operation, and involve the doing of acts by one of these great departments which appear to be intrusions, to some extent at least, upon the domain of the others. It is almost impossible in the conduct of government to observe a precise and exact separation of these functions. This difficulty was recognized and dealt with by the court of errors and appeals in the case of Paul v. Gloucester Co., 50 N. J. Law, 611, 15 Atl. 272, 1 L. R. A. 86. That court there declared that the clause of the constitution under consideration operates prohibitively only when it relates to those powers which, by the constitution itself, are assigned to, or which in their nature pertain to, one of the three great

departments exclusively. The court cites numerous instances showing that, in the usual and accepted conduct of government, powers which are not expressly or inherently related to any one department have always been exercised by that one of them to which they are by law referred. The court declares that "the conclusion is inevitable that this multitude of duties was regarded as lying outside of what were termed the powers properly belonging to the executive, legislative, and judicial departments, and was left by the constitution to be discharged in such mode as the law should provide." Upon this question of the relation of the powers of government, there are several decisions which, at first glance, appear to be favorable to the contention of the defendant company. The cases of Railroad Co. v. Matthews, 36 N. J. Law, 531, and Railroad Co. v. Leaman, 54 N. J. Law, 202, 23 Atl. 691, 15 L. R. A. 426, in the court of errors, declare that it is the function of the legislature to prescribe the character of the safeguards which railroad companies shall provide at highway crossings, and that if additional protection is necessary the requirement therefor "must proceed from the legislative, and not from the judicial, power." Matthews Case, 36 N. J. Law, 534. The court in these cases had under consideration the adoption by the legislature of general rules applicable as a matter of general state policy to the crossing of all highways by railroad tracks. Neither of the cases cited discusses or refers to the duty specially imposed upon the railroad company by its own charter. Such general legislative regulations could not possibly provide for the special emergencies arising at particular crossings, calling for appliances to make each crossing safe, which are peculiar to that spot. In some cases, one method would fitly afford relief; in other cases, another. Remedies for these exigencies must be provided. The functions to be exercised in providing them cannot be deemed to be legislative. The legislature has no means of investigating and determining the questions which these conditions raise, or of directing the installing of the additional safeguard which each particular crossing may require. because of its own peculiarities. If it attempted to hear and determine disputes between municipalities and railroad companies as to their respective rights and duties at each particular crossing, the parties must be noticed, a hearing must be had, evidence must be produced and its admissibility ruled upon, argument must be heard and considered, and a judgment must be pronounced.

These incidents are inherently necessary to the accomplishment of the desired result. i. e. the ascertainment whether at a partic ular crossing it is the duty of a particular railroad company to provide additional safeguards because of the situation of affairs there existing. Such a procedure by the leg islative department, in any mode of its ae