
    Haywood Brookins, Ordinary, plaintiff in error, vs. The Central Railroad and Banking Company, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Railroads — Roads—When Not Liable for Repair of Same. — When, without authority of law, a railroad company, thirty years ago, changed the public road at one of its crossings, cut out a new road, and, at some expense, built a bridge over a stream said new road crossed; and, by common consent, the old road was abandoned and the new one used by the public:
    Held, That the railroad company, in the absence of any contract so to do, is not bound to keep up said bridge, and the mere fact that the company first built it, and that it has since, at various times, repaired it, (it being near one of its depots,) does not make an implied contract with the county that the company will keep it in repair.
    Railroads. Roads. Before Judge Twiggs. Washington Superior Court. March Term, 1872.
    Haywood Brookins, as Ordinary of the county of Washington, brought case against the Central Railroad and Banking Company for $1,000 00 damages, alleged to have been sustained by plaintiff, by reason of the failure of defendant to repair and keep up a certain embankment on Hill creek, and bridges'over said stream, on a “common road” of said county, known as the “Darien road.”
    The.defendant pleaded the general issue.
    The evidence made the following case: When, in the course of the construction of the Central Railroad, the work had approached station number fourteen, the company laid out the new *road through the land of one William Fish, and paid him $100 for his services. This occurred about the year 1845. William M. Wadley, the contractor in charge, moved near to station fourteen, and for his own convenience, and at his own expense, worked the road, built the bridges, and kept them in repair until he moved away, in 1857. The course of the old Darien road was more beneficial to the defendant than the new road, for the reason that the old road ran under the railroad track, while the new road ran over it. The new road passes by the station, and the change was made for this purpose. The old road is not closed, but is still passable for all vehicles except those which are high-topped. The defendant has offered, and is still willing to provide a good, substantial crossing at the old point of intersection. The evidence was conflicting as to ivhether the defendant had repaired and kept up, at any time, the bridges over Hill creek. In October, 1869, the citizens residing in the vicinity of the station made complaint that the bridges had decaj^ed, and were in an impassable condition. Plaintiff notified the defendant and requested it to have them rebuilt. Upon the refusal of the defendant, the plaintiff rebuilt them, at an expense of $524 00. _ 'l
    _ The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial upon the following grounds, to-wit:
    1st. Because the verdict was contrary to the evidence.
    ■ 2d. Because the Court refused.to charge the jury as follows:
    “That he who derives the advantage must take the burden. If, therefore, the jury believe that the Central Railroad cut the new road for its own advantage, and thereby rendered the erection of bridges necessary, and by long custom kept said bridges in repair, and the county recognized said road as a public road, and said railroad obstructed a public road, and changed said road, then there is an implied contract to keep up the bridges on the new road.”
    3d. Because the Couj-t erred in the following charge: “That the road was either a public or a private road. If a public road, it must be made in the manner pointed out by the statute. *That if this action is for damages done to a public road, and that it does not pursue the remedy pointed out by the statute, the plaintiff is not entitled to recover. If it is a private road, and not made in pursuance of the section of the Code, the Ordinary has no right to appropriate money for the repair of bridges on a private road, and the plaintiff cannot recover in this form of action.”
    
      The motion was overruled, and the plaintiff excepted upon each .of the grounds aforesaid.
    Langmade & Evans, by SamueE F. Webb, for ‘plaintiff in error.
    Jackson, Lawton & Basinger ; R. L. Wortpien, for defendant.
   McCay, Judge.

We do not think the charge of the Court in this case was the proper charge to be given, as we are strongly impressed with the idea that this road, used and worked as it has been, for over twenty years, is a public road, even though there be no proof, in fact, of an order, etc., of the Inferior Court. But we are clear that there is nothing in this evidence to have authorized a verdict for the plaintiff.

The road is not within the limits of a crossing, so as to make it the duty of the Company, to keep it up as part of the crossing. It is from two to three hundred yards from the track. Is there anything more here than the ordinary case of a planter turning the public road without authority of law ? Suppose he does this, cuts out a good road, builds a causeway or a small bridge, puts the whole in good order, and opens it to public use.. It is adopted, the old road deserted, and finally closed up, and the new one used for thirty years; suppose, even, to make the case stronger, that the planter, for his own convenience, has, at times, repaired the bridge or causeway, or filled up holes in the road. Can it for a moment be pretended that under this state of facts the law would cast upon the *planter the permanent duty of keeping up the bridge or causeway? There are always two parties to a contract. Is it not just as fair to say that the public, when it accepts a new road, takes it as it is, as to say that he who has opened it has contracted to keep it in order? Nay, is it not far fairer and more reasonable to say (in the absence of any contract) that the new road goes into the hands of the public, just as the old one — that if the public accepts it — it takes upon itself the ordinary duty attaching to it with respect to public roads?

We see nothing in any of this evidence to justify the claim of the Ordinary. The railroad company has the same rights as to a road as any citizen, and if, for the conveyance of those wishing to get to its depot, it repairs a road or a bridge, it does it as any other citizen might do, without incurring the liability of undertaking always to do it. We think the verdict right. There was no evidence to sustain the plaintiff’s claim.

Judgment affirmed.  