The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1897-03-23
DECISION.

Opinion Of the -Supr.me.Court In the Mat.
ter Of Fourth Street B~ridge-Justiee
Montgomery Overrufes Judge Sfarbuck
and Holds That the Street Railway Com.
pany Must Help to Maintain the Bridge.
The supreme court of North Caro-
lima has just rendered a decision that
is of special interest to the city n
the railroads using its streets. as af-
fecting the maintenance of public
bridges. The Carolina Central Railway
Company some time since instituted
suit against the Wilmington Street
Railway Company to enjoin Its use of
Fourth street bridge. near Hilton,
unless it contributed pro rata to its
maintenance. The city was also made
Esq, appeared for the plaintiff rail-
road, John D. Bellamy, Esq. for the
defendant street railway, and f. X.
Bryan, Esq. for the city. The defend
ants filed a demurrer to the complaint
and the case was tried before Judge
Starbuck. Judge Starbuck holds that
the plaintiff was not entitled to the
relief demanded and sustained the de-
murer by consent, as to the city. and
by judgment as to the defendant street
railway. The plaintiff appealed and
the supreme court overruled the de-
murer and rendered the following de-
cision:
Montgomery j. Upon entering the
city of Wilmington, the plaintiff COM
pany, before it could lay its track
across Fourth street, at a point then
within the city limits, was compelled
to cut through a considerable embank-
ment, thereby necessitating the build
ing Of a bridge over the cut in order
that ave and transportation should
not be obstructed or delayed over the
street. The territory within the city
limits and contiguous to the bridge,
has never been built up, nor have
streets actually been aid off there.
The highway, which at the bridge is
called Fourth street, was the old public
road leading out from the city before
the city limits were extended. The
bridge, when it was built, was. and is
now sufficient for the ordinary pur-
poses of travel by foot and horse ana
vehicle transportation. The defendant
railway company has commenced to
I'LL SllSCS A"Ao ' AN ANS AAA
has m to run them in sections
Of from two to four cars at a time.
The defendant refuses to
unite with the plaintiff in the mainte-
nance Of the bridge in order to meet.
as the plaintiff cOntended, the larger
s%ervitudes imposed upon it by the de-
PENDANT cOmpany's cars, and to provide
the necessary c~OnvenienceS at the in
tersection as required of them by sub
cnofioo e Cnottnn 1 or n f Thn Code
The plaintiff alleges further in the
complaint That if the said defendant
Street Railway Company is allowed to
operate it's cars over the said bridge,
that there is great danger of the same
giving way and accidents being there
by caused, and in the event Of such &C
cidents the plaintiff may be involved
in vexatious litigation and actions for
alleged damages to it's loss and injury
by reason of the fact that the said
bridge is inadequate to support the
running of the heavy cars defendant
Street Railway Company propose to
run and operate over said fridge" The
complaint concludes with a prayer for
judgment that the defendant company
be enjoined from carrying out it's pro-
posed action.
A demurrer was filed and the ground
assigned is that the complaint shows
that the plaintiff company laid its
track, dug the cut, and built the bridge
across Fourth street, after the limits
Of the city had extended beyond the
bridge, and hat neither the proposed
action of the defendant company nor
it's action in the past imposes. or will
impose, any additional SeT,itude upon
the bridge or upon the street of which
aid bridge forms a part, and that
therefore no cause of action is set out
in the cOmDlalnt of the Dl3lntlfI.
The demurrer was sustained.
The demurrer raises the question,
| whether or not the running Of street
cars by an incorporated street railway
company over q bridge already con-
Structed by a railroad within
the city limits and sufficient for the
ordinary uses of the public, imposes
an additional servitude upon the
bridge? 1t would seem that the prin-
ciple Of law underlying the question,
stripped of unnecessary Verbiage. is a
! simple one. In the solution of the
matter it is only necessary to consider
two propositions: first, the nature of
the liability to the public, imposed
upon the plaintiff company at the time
of the construction of the bridge; and
| second, what continuing liability, if
any, was and is imposed upon the
/. plaintiff as to the maintenance Of the
; bridge.
The law undoubtedly imposed upon
: the plaintiff company, at the time the
bridge was built, the obligation to put
up such a structure as would be suffi-
cient for the then needs of the public
| as to travel and transportation over
the street or highway. It is also we'll
settled by the authorities that the
plaintiff company was under the furth-
er obligation of maintaining a bridge
of such proportions and strength as
would meet the continuing demands Of
the public in reference to travel by
foot and horse and the ordinary vehi-
! Gle transportation yer the street. The
growth in population and the building
up of cities and trade, while probably
(, increasing. the expenditures Of the
! plaintiff company in maintaining the
, bridge to meet changing conditions also
increase the business and profits of the
plaintiff and thereby compen-
| safe it for it's additional outlay on &C
count Of the added burden of servitude
which these things produce. But does
| the obligation imposed upon the plain