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See End of Index for Tables of Atlantic Cases in State Reports.

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THE

Atlantic Reporter.

VOLUME XIII.

NEW YORK & G. L. R. Co. v. STATE.

(Supreme Court of New Jersey. February 27, 1888.)

1. RAILROAD COMPANIES-FAILURE TO REPAIR CROSSING-INDICTMENT.

Neglect to keep a bridge in repair across a cut made by a railroad company, where its road crosses a public highway, so that travel is obstructed upon the highway, is a breach of duty to the public for which the owners or operators of the railroad are indictable.

2. SAME-LIABILITY OF SUCCESSOR.

The duty of building and keeping in repair such bridges, which was imposed upon the Montclair Railroad Company by its charter, devolved upon a new corporation which purchased the property and franchises of the old corporation at a sale made under a decree of foreclosure, and organized itself under section 56 of the railroad and canal act.

3. MORTGAGES-FORECLOSURE-RECITAL OF DECREE IN MASTER'S DEED.

The recital of a decree of foreclosure contained in a duly-acknowledged master's deed is prima facie evidence of the existence of the decree.

(Syllabus by the Court.)

Error to court of quarter sessions, Essex county; KIRKPATRICK, LEDWITH, and JOHNSON, Judges.

Indictment for nuisance against the New York & Greenwood Lake Railroad. Verdict of guilty, and defendant brings error.

Argued at November term, 1887, before the chief justice and Justices DIXON, MAGIE, and REED.

Wm. S. Gummere and Oscar Keen, for the State. Cortlandt Parker, for plaintiff in error.

REED, J. The plaintiff in error was tried for maintaining a public nuisance, by reason of its failure to keep in repair a bridge across a cut, which cut, being unbridged, obstructed travel upon a public highway in the township of Montclair, in the county of Essex. The question upon the trial was whether a duty rested upon the defendant below to keep up a bridge across the cut, which cut was made for the purpose of laying a railroad track. The evidence in the case disclosed the following facts: The Montclair Railway Company was incorporated by an act passed in 1867, (Pamph. L. 1867, p. 301.) By the sixth section of its charter it had the power to survey, lay out, and construct a railway from the village of Montclair to the Hudson river, and to extend the road into the townships of Caldwell and Wayne, and construct a branch in the township of Montclair. By section 9 of the charter a duty was v.13A.no.1-1

imposed upon the corporation to construct, and keep in repair, good and sufficient bridges over or under its railroad where any public or other road shall cross the same. There is in evidence a survey and location of the center line of part of the extension of the Montclair Railway into the township of Caldwell. There is also in evidence the return of surveyors of highways of a road laid in Montclair township, which road was known as "Mountain Avenue." It was in evidence that where the located railroad crossed the located avenue there existed a cut 20 feet in depth and 69 feet in width at the top; that this cut was made by the Montclair Railway Company in grading its road-bed; and that the company constructed a bridge across the cut at its intersection with Mountain avenue, which bridge subsequently disappeared. It appears that, under a decree of a foreclosure of a mortgage given by the Montclair Railway Company, the said railway and franchises, including the Caldwell branch, was sold to two gentlemen, who made a deed of the property purchased to a corporation organized under the name of the Montclair & Green wood Lake Railroad Company. In 1878 the said railway and franchises, including the Caldwell branch, were again sold under a decree of foreclosure, and bought in by the same gentlemen, and by them conveyed to the plaintiffs in error.

The questions raised are-First, whether the Montclair Railway Company would have been indictable for a failure to bridge and keep in repair a bridge across this cut; second, if so, has this duty devolved upon the present plaintiffs in error? The duty of the Montclair Railway Company was clearly imposed upon it by the legislature, in behalf of the public, for the purpose of securing the unobstructed use of the highways of the state; therefore a neglect to perform such duty to the public was indictable according to the rules of common law. 1 Bish. Crim. Law, § 239; 2 Bish. Crim. Law, § 1281. This rule was applied to railways obstructing a highway in the cases of State v. Railway Co., 29 N. J. Law, 353; State v. Railway Co., 32 N. J. Law, 220. No argument, in the face of this plain principle, seems needed to exhibit the liability of the corporation by whom the obstruction in the present case was originally caused or permitted to exist; nor would the liability of the Montclair road be affected by the provision in its act of incorporation, that, if the company neglect to perform its duty, the person or public officer having charge of the repairs or maintenance of the road, after 20 days' notice to the company, may do the work or cause it to be done, and recover the value thereof from the company. This provision does not relieve the company of its duty, but only imposes the same duty upon others, upon a different condition of facts, and for a failure to perform which duty they can also be indicted. The second question is relative to the devolution of this duty upon the defendants below. The duty is claimed to rest upon the defendants on either of two grounds, one of which is that it arises by virtue of two sales upon foreclosures of mortgages already set forth, under the provisions of paragraph 56 of the act respecting railroads and canals, (Revision, 917;) and another ground is that the provision in an act to be found in the supplement to the Revision, p. 828, imposing the duty of repairing bridges upon the owners and operators of railways, places this duty upon the defendants below. The fiftysixth paragraph of the act respecting railways and canals, provides in substance that whenever any railroad is sold and conveyed under and by virtue of any decree of the court of chancery, and an execution issued thereon, to satisfy any mortgage debt, such sale shall vest in the purchaser all the right, title, interest, property, possession, and demand in law and equity of the parties to the suit in which the decree was made, in the said railroad, with its appurtenances, and all the corporate rights, liberties, privileges, and franchises of the said corporation, but subject to all the conditions, limitations, restrictions, and penalties of and concerning the said railroad contained in its charter, so far as they are in force at the time of the sale. The act provides that the purchaser and his associates, not less than 15 in number, shall become a

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