
    Hatch, Commissioner of Highways, v. Syracuse, B. & N. Y. R. Co.
    
      (Supreme Court, General Term, Fourth Department.
    
    November Term, 1888.)
    1. RailroXH Companies—Highway Crossings—Duty to Restore.
    The duty imposed upon a railroad company by Laws N. Y. 1850, o. 140, § 38, to restore a highway intersected by its road “to its former state, orto such state as not unnecessarily to have impaired its usefulness, ” is a continous one; and whenever, by an increase of business on a highway, the facilities first provided by the company become inadequate, it must make such changes as may be reasonably necessary.
    2. Same—Limitation of Action.
    As the duty is continuous, the statute of limitations does not apply.
    Appeal from special term, Broome county.
    Action by Porter B. Hatch, sole commissioner of highways in the town of Fenton, Broome county, against the Syracuse, Binghamton & New York Bailroad Company, to compel the removal of a bridge constructed across a highway. From a decree for plaintiff, defendant appeals.
    Argued before Hardin, P. J„ and Follett, J.
    
      D. 8. Richards, for appellant. E. K. Clark, for respondent.
   Follett, J.

Appeal from a judgment entered on a decision of a special term, and heard in this court on a case which contains all of the evidence. In 1854 the Syracuse & Binghamton Bailroad Company, incorporated under the general railroad act, constructed its railroad across one of the highways of the town of Fenton, by an over-crossing or bridge. The highway was, and is, 3 rods wide. Two stone abutments 12 feet high, 15 feet apart, 43 feet long, and parallel with the traveled track of the highway, were built, upon which stringers and the railroad track were laid. Afterwards the defendant (incorporated under the general railroad act) succeeded to the rights of the first-named corporation, and has, for many years, owned and operated said road. July 10, 1886, this action was begun, describing said bridge or crossing, and alleging that it was an obstruction to public travel, an encroachment, and asked for a judgment compelling its removal from the highway. The defendant answered that the bridge was constructed pursuant to the statutory powers conferred upon railroads, with the consent of the commissioners of highways; that the highway was restored to its former state of usefulness; had remained in the same condition for more than 30 years before this action was begun; and that the statute of limitations was a bar. The court found that the passage-way (15 feet in width) was too narrow, and unnecessarily and materially impairs the usefulness of said highway, which had not been restored to its former state, or to such a state as not unnecessarily to have impaired its usefulness, and decided that the north abutment should be moved 10 feet northerly, so as to leave the passage-way 25 feet wide. Since this action was begun the defendant has shortened the walls about 11 feet, so that they are now 32 feet, iftstead of 43 feet, long.

Section 28, c. 140, Laws 1850, (the general railroad act,) authorizes every corporation incorporated under that act “(5) to construct their road across * * * any * * * highway * * * which the route of its road shall intersect or touch, but the company shall restore the * * * highway * * * thus intersected or touched to its former state, orto such state as not unnecessarily to have impaired its usefulness.” Chapter 255 of the Laws of 1855 authorizes the commissioner of highways to bring any action against a railroad which may be necessary to enforce the performance of any duty enjoined upon the corporation in respect to any high ways. Barse v. Railroad Co., 13 N. Y. St. Rep. 215. Under the statute, railroads are required to restore highways to their former state of usefulness, and to preserve them in such state. The duty is a continuous one. People v. Railroad Co., 74 N. Y. 302, 306; People v. Railroad Co., 89 N. Y. 266. If, by an increase of business on highways, the facilities first provided become inadequate, the corporation must make sucli changes as are reasonably neceSsary.to provide for the needs of the public. Cooke v. Railroad, 133 Mass. 185; Burritt v. City of New Haven, 42 Conn. 174; Manley v. Railroad Co., 2 Hurl. & N. 840; 2 Wood, Ry. Law, 979. See, also, the remarks in People v. Railroad Co., 89 N. Y. 270. 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. This disposes of the case upon the merits, and of the exceptions taken to the refusal of the court to nonsuit the plaintiff. The bridge an,d its approaches, and the cause of action, are very accurately described in the complaint; and the fact that the bridge is characterized as an “obstruction” and as an “encroachment,” while, technically, it may not be either, is not such a variance between the relief demanded and granted as would authorize the reversal of the judgment. Hone of the exceptions taken by the appellant to the rulings upon the admissibility of evidence are discussed or alluded to in the brief, and it is assumed that they are not relied upon. The judgment is affirmed, with costs.

Hardin, P. J., concurred.  