#### TOWN OF WINDSOR v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Appeal—Objections not Raised Below.

In an action by highway commissioners to compel a railroad company to remove obstructions at the intersection- of its road with a highway, the objection that the complaint failed to allege an imperative duty on defendant’s part to restore the highway to its former condition, or so as not to unnecessarily impair its usefulness, cannot be raised for the first time on appeal.

3. Railroad Companies—Interference with Highway—Action to Restore.

Under Laws 1890, c. 568, § 15, providing that commissioners of highways may sue in the name of the town to sustain the rights of the public in a highway, and to enforce the performance of any duty in relation thereto, an action will lie to compel a railroad company which has constructed abutments at the intersection of its road with a highway, in such a manner as to narrow the highway and impair its former usefulness, to restore the same to its original width, or to such a state as will be adequate to the needs of the public.

3. Same—Statute of Limitations.

The duty of a railroad company which has built its road across a highway to restore the highway to its former state, or tUsuch a state as not to unnecessarily impair its usefulness, being a continuous duty, is unaffected by the statute of limitations.

Appeal from judgment on report of referee.

Action by the town of Windsor against the president, mánagers, and company of the Delaware & Hudson Canal Company. Judgment was entered in favor of plaintiff, and defendant appeals.

Affirmed.

From the referee’s report it appears that the plaintiff" is a town situate in the county of Broome, and that Hoadley, as sole commissioner of highways of that town, on the 8th day of June, 1892, commenced this action; that the defendant is a corporation incorporated under the laws of the state, oper*864ating a railroad from Nineveh Junction, in the state of New York, to Jefferson Junction, in the state of Pennsylvania, “which railroad passes through the town of Windsor aforesaid in a northerly and southerly direction, having been constructed in or about the year 1872, and ever since used for railroad! purposes; that for many years there has existed in said town of Windsor a public highway running from Ouaquaga, in the town of Oolesville, in said! county, through the town of Windsor, aforesaid, to and past the hamlet known as ‘Bast Windsor,’ in said town of Windsor; that said road has been located and used for more than 20 years as a public highway prior to the construction of said railroad.” It is also found that the defendant constructed its railroad tracks and “crossed said highway at a point west of the Bast Windsor cemetery, by an overcrossing. Said crossing, which was built in or about the years 1871 and 1872, consists of two stone abutments about sixteen feet long, where they are parallel and a wing to each abutment on either side, the wings on the east side being 11 feet in length, and the wings on the west side being 16 feet in length, the main walls of said abutments running a distance of 16 feet parallel to each other, and thirteen feet two inches apart, with embankments running up to said abutments and wings upon either side, upon which abutment stringers and the track of said railroad was laid about twelve feet from the surface of said highway below.” It is also found “that the railroad constructed as above described materially and unnecessarily impairs the usefulness of said highway; that no necessity exists requiring a passageway as narrow as that now maintained by the defendant, but the requirements and safety of the traveling public demand an enlargement of said passageway; that defendant did not upon constructing its railroad across said highway, nor has it since, restored said highway to its former state, or to such a state as not to unnecessarily impair its usefulness.” It is found that a passageway “under said railroad of twenty-five feet would be sufficient to accommodate the travel on said highway, and an enlargement of said passageway to that which would render it sufficient to restore said highway to such a state as not to, unnecessarily impair its usefulness.” It was found as a conclusion of law that the railroad had a right to construct and maintain its railroad across said highway; “but it is the duty of said company to restore said highway to its former state, or to such a state as not to unnecessarily impair the use of said highway; that, in constructing said railroad and maintaining the same, the defendant did not restore said highway to its former state, or to such a state as to not unnecessarily impair its usefulness.” It was found that neither the town of Windsor, “nor the commissioner of highways of that town, has so far accepted or acquiesced in the action of the defendant as not to be entitled to maintain this action.” Judgment was ordered and entered in accordance with the findings.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Lewis E. Carr, for appellant.

H. S. Williams, for respondent.

HARDIN, P. J.

Criticism is made upon the plaintiff’s complaint-Upon looking into it, we find that it contains all the essential facts-found by the referee in his report, as well as some other allegations which could be construed, perhaps, to indicate that the pleader supposed the plaintiff had some right of action by reason of the “construction and encroachments” placed upon the highway, rendering it dangerous, by the defendant. In the prayer, however, for judgment, the plaintiff asks “that the said defendant remove all the said obstructions, abutments, embankments, stone, iron, and material from the said highway, and "within its bounds, and they be declared to bean impediment and obstruction to public travel, and the defendant be compelled to remove each and all of said obstructions, and perpetually, as well as pending this action, it be enjoined from keeping *865or maintaining, using or repairing, the said abutments or embankments, abutments, or obstructions in the said highway, or any obstruction within its bounds.” During the progress of the trial, we do not find that the defendant took specific objections to the complaint on the ground that it did not allege an imperative duty on the part of the defendant to restore the road to its former condition, or so as not to unnecessarily impair its usefulness. We think the criticism made to the complaint at this stage of the action must fail. Wademan v. Railroad Co., 51 N. Y. 572.

In chapter 568 of the Laws of 1890 it is provided in section 100 that:

> “All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway; and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”

That section fell under construction in Speir v. Town of Utrecht, 121 N. Y. 420, 24 N. E. 692, and in People v. Osborn (Sup.) 32 N. Y. Supp. 358.

We think the proof in the case before us is sufficient to indicate that the highway had been used by the public as a highway, and that, coupled with the proof of the survey of 1814 and the order accompanying the same, laying it out as a highway, the referee, upon all the evidence, was warranted in assuming that the site where the defendant’s embankments were placed was a part of the public highway. The evidence produced before the referee differs very much from the-evidence disclosed in the cases to which reference has already been made.

In Barse v. Railroad Co., 13 N. Y. St. Rep. 215, this court had occasion to examine the statute which authorized commissioners of highways “to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to-any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners.” In that case it appeared that the defendant had “failed to restore said highways to-their former state of usefulness,” and we sustained the action. In the course of one of the opinions delivered in that case, the distinction-between an action against a private individual and one against a corporation was pointed out, and the case of Rozell v. Andrews, 103 N. Y. 150, 8 N. E. 513, was stated not to aoply to an action against a corporation. Since that decision was made, the legislature, in the highway act (section 15, c. 568, Laws 1890), has provided that commissioners of highways may bring an action in the name of the town “against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto,” etc.

In Hatch v. Railroad Co. (Sup.) 4 N. Y. Supp. 509, it was held that the duty imposed upon the corporation to restore a highway to its former state, or to such state as not unnecessarily to have impaired *866its usefulness, is a continuous one, and that the action was not barred by any statute of limitations.

In the course of the opinion delivered in Post v. Railroad Co., 123 N. Y. 587, 26 N. E. 7, it is said that, while the highway commissioner cannot dictate how the work of restoration should be accomplished, the duty imposed on a railroad company whose road is located in a highway to restore it to its former state, or to such state as not unnecessarily to impair its usefulness, is “a corporate duty, which the company is bound to perform; and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or for damages sustained by the town from nonperformance.”

Prior to the decision of that case, it had been intimated in New York, C. & H. R. R. Co. v. People, 12 Hun, 195, that the remedy for failure on the part of the railroad was by indictment. That case was modified to some extent when it reached the court of appeals, as appears by the report thereof as found in 74 N. Y. 302; and in the course of the opinion delivered by Church, C. J., in considering the duty of the corporation to restore the road, he said:

> “The duty thus imposed is an important one for the public, and it should be enforced, not oppressively, but reasonably, and fairly for the public benefit.”

And he added:

> “It was the duty of the defendant not only to properly make these approaches, but to keep them in suitable repair. Having to this extent interfered with the highway, or, rather, having taken possession of the old highway, and substituted a new and different one, they must preserve it in a state, as far as practicable, of original usefulness;” citing Cott v. Railroad Co., 36 N. Y. 214.

And it was also said in that case that the duty was a continuous one.

In People v. NewYork, N. H. & H. R. Co., 89 N. Y. 266, in the course of the opinion, it was intimated that it was a question of fact, in a somewhat similar case, “whether the defendant unnecessarily impaired the usefulness of the highway”; and it was intimated that, “by the growth of population, the first provision made might become inadequate for the public accommodation.”

The doctrine last mentioned wras approved in Hatch v. Railroad Co., 50 Hun, 64, 4 N. Y. Supp. 509, and in the course of the opinion delivered in that case it was said:

> “If, by an increase of business on highways, the facilities first provided become inadequate, the corporation must make such changes as are reasonably necessary to provide for the needs of the public.”

Numerous cases are then cited. The opinion then adds:

> “Whether the facilities afforded were sufficient was a question of fact for the court, and, under the evidence, its decision ought, not to be disturbed by this court. The duty being a continuous one, the action was not barred by any statute of limitations.”

In order to maintain this action, we think it is not necessary that the commissioners should declare an encroachment, and institute *867proceedings given by the statute for the removal of an encroachment. Nor do we think Cook v. Covil, 18 Hun, 288, has any application to the case in hand. We are of the opinion that the existence of the abutments/for the period of upward of 20 years did not limit the public to the right of the space 13 feet and 2 inches between them, and that it was a question of fact, upon all the evidence before the referee, as to whether the needs of the public were such that the aperture left was inadequate to serve the same. There was some evidence given tending to show that the abutments were placed in that portion of the highway which had been used by the public prior to their erection, and we are of the opinion that the evidence warrants a finding of fact that the public had acquired rights in the use of the highway which the defendant has interfered with.

We have looked into the exceptions taken during the progress of the trial, and also to the omission of the referee to make certain additional findings, and we are of the opinion that they do not present any error which requires us to interfere with the conclusion reached by the referee.

Judgment affirmed, with costs. All concur.