
    The City of Binghamton, Resp’t, v. The Binghamton & Port Dickinson Railway Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November 21, 1891.)
    
    Railroad—Liability of street railroad to repair between tracks.
    Defendant’s charter required it to keep the surface of the street between its tracks and for one foot outside thereof in good and proper order and. repair. At the time of the construction of its road the street was not paved. Subsequently the common council directed the paving of the street with asphalt. Defendant failed to so pave between its tracks, and this action was brought to recover the amount paid by the city therefor. Held, that defendant’s charter did not require it to pave unless it was clearly shown to be necessary; that the declaration of the common council that an asphalt pavement should be laid did not, as against defendant, presumptively prove the necessity of such pavement, and that a breach of defendant’s agreement to keep such space in repair was not shown.
    Appeal from a judgment entered in Broome county on the 23d day of March, 1891, upon the report of a referee in favor of the plaintiff for $5,181.12 damages, besides interest and costs.
    
      Edmund O'Connor, for app’lt; A. D. Wales and Charles F. O'Brien, for resp’t
   Merwin, J.

This action is brought to recover the expense of paving between the defendant’s railway tracks on- Chenango street in the city of Binghamton from the Erie railway northerly to the north line of the city.

The plaintiff was incorporated as a city by chapter 291 of the Laws of 1867. By this act, the mayor and common council were made commissioners of highways and given the general powers of commissioners in towns. They were also given the power to regulate, pave, repair and improve the streets. It was however provided that, before any paving should be ordered, it should be necessary that two-thirds of all the owners of real estate fronting upon the street to be paved petition or consent that the same shall be done. The expense of paving was directed to be assessed upon the owners in proportion to the number of feet frontage, except that when the street was paved for the first time, two-thirds only of the expense should be assessed on the owners and the remainder be paid from the highway fund, and “such street or part of street shall, after such first payment as aforesaid, be kept in repair at the expense of the city.”

The defendant was incorporated by chapter 501 of the Laws of 1868, passed May 1, 1868. By this act, the defendant was authorized to construct and operate a railroad, with a double or single track, through and along certain streets and public roads of the city and town of Binghamton. One of the designated streets of the city was Chenango street. The mayor and common council of the city and the proper authorities of the town were “authorized and directed to grant permission to the company herein named, or their assigns, to construct, maintain, operate and use said railroads in, upon and along the several streets and highways herein mentioned.” It was further provided that the cars should be drawn by animal power, and “ the tracks of the said railroad shall be laid flush with the surface of the said streets and highways, and shall conform to the grade as it now is, or shall be from time to time established or altered by the proper authorities in 'each case; and the said company and their assigns shall keep the surface of the said streets and highways within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper order and repair.” On the 21st August, 1871, the common council of plaintiff granted the defendant authority as directed by the act.

Prior to January 2, 1872, the defendant, pursuant to the powers, rights and privileges granted it, constructed its track through Chenango, Court and Main streets, and has, at all times thereafter, run its cars over its track and operated a horse surface railway through those streets.

Oil the 2d January, 1872, the common council of the plaintiff adopted an ordinance in relation to street railroads, which in substance provided that all street railroad companies that should thereafter maintain railroads in any of the streets should, under the direction of, and as required by the common council, “improve with such suitable materials as the common council shall direct and in a proper manner, between the rails, and shall keep the surface of the street inside the rails in good repair,” and in default thereof the common council should have the right to cause the repairs to be made and assess the expense thereof upon the property of the company or sue for the same.

The charter of the plaintiff was revised by chapter 214 of the Laws of 1888. Under it, as so revised, paving could be ordered without first requiring the consent of any part of the abutting owners, and in all cases . one-half the expense was to be assessed upon the owners according to extent of frontage, and it was provided that “ all repairs on said streets or parts of streets, not including grading and paving or repaving, as aforesaid, shall be done at the expense of the city.”

On the 16th April, 1889, the common council adopted the following resolution:

“Whereas, persons owning a majority of the property fronting on Chenango street, in the city of Binghamton, N. Y., between the railway tracks and the north line of the city, have subscribed a petition asking this council to pave said street between said points with Trinidad asphalt pavement, with concrete foundation, now, therefore, be it

“ Resolved, That we deem it for the best interest of said city, and the public good demands, that said street be paved withs aid pavement and foundation, and be it further ■

“ Resolved, That we will pave said street from the railway tracks to the north line of said city with Trinidad asphalt pavement, with concrete foundation, and that the city engineer and corporation counsel be and they are hereby directed to prepare proper specifications for said pavement, and report the same to this council at the next meeting thereof, that the city clerk may prepare and give the necessary notice in the official paper for proposals to build said pavement.”

On the 22d April, 1889, plans and specifications were reported and adopted, advertisement for proposals was thereafter made, and on the 21st May, 1889, the common council accepted the bid of the W arren Scliarf Paving Company to construct the pavement at $2.80 per square yard. On the 11th June, 1889, the council adopted a resolution directing the defendant to place its tracks on the established grade, and that it pave within its tracks and one foot on the outer side of said track with Trinidad asphalt pavement, with a concrete foundation, according to the specifications for the paving said street, now on file in the city clerk’s office,” to be completed within thirty days after the service on the company of a copy of the resolution. The resolution was duly served on the defendant, and it put its tracks on the grade, but refused at all times to fill between the tracks with asphalt pavement, or pay for the same, but did offer to pave between the tracks with wooden blocks. The pavement was laid by the paving company under its contract with the city, and one-half the expense was paid" by the abutting owners, and the other half by the city. The street had not at any time prior thereto been paved. The expense of paving between the rails of defendant’s tracks at the rate of $2.80 per square yard was $5,181.12. This sum the common council assessed upon the defendant under the ordinance of 1872, but it has not been paid.

In the complaint, the ordinance of January 2, 1872, is alleged as a foundation of liability against the defendant, and this position was apparently urged at the trial, but the referee held that the plaintiff could not base its claim on that ordinance. The correctness of this ruling is not here questioned by the counsel for the plaintiff, and it need not be further here considered. The referee, however, held that under the provisions of chapter 501, of 1868, the defendant became obligated and bound itself to pave the surface of the street, within the rails of its track and for one foot outside thereof and to the extent of the ties, when duly requested or directed by the proper authorities of the plaintiff, and in the manner and with the material designated and directed by such authorities. Upon this theory, he ordered judgment for the amount claimed by plaintiff. The claim of the defendant is that the expression in the act of 1868, “ in good and proper order and repair,” does not include paving, and that it does not impose on defendant an obligation to reconstruct the surface of a portion of the street at the arbitrary will of the plaintiff. •

There are many cases in which a distinction is recognized between paving and repairing. In the Matter of Repaving Fulton Street, 29 How., 429, where Eulton street, in the city of Brooklyn, having then a cobblestone pavement, was repaved with Belgian ¡lavement, it was held that the work was not a repair of a street and the expense chargeable to the city, but a local improvement and, therefore, the subject of a local assessment. In The State ex rel. The City of Kansas v. The Corrigan Consolidated Railway Co., 85 Mo., 263, the obligation on defendant was that “ the space between the rails of said track, and the street for a space of two feet on either side and along the line of said track, shall be kept and maintained in good repair by said railway company.” The street was then unpaved. The city authorities afterwards determined to pave the street with sandstone blocks, to be laid upon a foundation of concrete nine inches thick, and called upon the railway company to pave in that way between its tracks. It was held that the defendant was not liable, it being said that an obligation to repair a street is not an obligation to construct thereon a new pavement. A similar view was taken in Mayor of Baltimore v. Scharf 54 Md., 499, 525, where the obligation on the street railroad company was to keep its track and two feet on each side of it “ in thorough repair,” and the improvement was to repave with Belgian pavement in place of cobblestone. In Western Paving & Supply Co. v. Citizens' Street Railway Co., 26 N. E. Rep., 188; S. C., 28 id., 88, the obligation was that “ the said company shall keep the tracks, and two feet on the outside of each rail, together with all bridges and the crossings of all gutters, at all times, in good repair, to the satisfaction of the common council.” It was held that the company could not be compelled to pay the expense of regrading with asphalt.

Upon the other hand, in Middlesex R. R. Co. v. Wakefield, 103 Mass., 261, 266, it is said that no sound distinction can be made between needful repairs and such improvements as are required by the public good. In People ex rel. City of Detroit v. Fort Street & Elmwood Railway Co., 41 Mich., 413, it was assumed that a liability to keep “ in good order and repair " included paving. And so it was in Ridge Avenue Railway Co. v. Philadelphia, 124 Pa. St., 219, under an obligation to keep “in perpetual good repair.” In Huggans v. Riley, 125 N. Y., 88 ; 34 St. Rep., 458, it was_ held that a commissioner of highways, under the power given him to repair highways, may build a new bridge when necessary to connect the two portions of a highway interrupted by an intersecting stream. This was placed on the theory that it was necessary in order to make the highway passable.

In the present case, the liability was assumed in 1868 at a time when the road was not paved, and it may be assumed that since that time the use of the road has largely increased. The liability however upon the defendant to keep it in good and proper order and repair was continuing, and what would be necessary for that purpose would depend upon the situation at the time the performance of the covenant was called for. A condition of things may be imagined that would call for some kind of paving in order to reasonably perform the agreement. Whether a kind that would amount to a reconstruction of the street would in any event be within the agreement is a matter of some doubt. The necessity of such, to say the least, should be clearly made to appear.

The liability in question is somewhat similar to the liability upon a railroad company, under the general railroad act, to restore a street or highway that it uses to its former state or to such state as not unnecessarily to have impaired its usefulness. In such case the company is bound not only to restore the street to its former state but to keep the portion used by it in a reasonable state of repair. Of such a liability Judge Earl says, in Gilmore v. City of Utica, 121 N. Y., 572; 31 St. Rep., 880, “ that certainly does not bind a railroad company, whenever the municipality shall resolve to pave or repave a street, to conform its repairs to the absolute directions and requirements of the municipality.”

In the case before us, there is no finding or proof that, at the time the common council of the city ordered the asphalt pavement, the space in the street occupied by the defendant was not in good and proper order and repair, or that the pavement was necessary for the purpose of keeping the street in such a condition, except as it may be inferred from the act of the city authorities in directing the pavement The question then arises whether such act in those respects binds the defendant, or is proof against it of any facts in controversy. The counsel for the plaintiff claims in effect that the resolution of the common council is presumptive evidence that the asphalt pavement was necessary and proper, and cites the case of Tingue v. Village of Port Chester, 101 N. Y., 294; 1 St. Rep., 9. In that case it was simply held that in an action to restrain the sale of land for non-payment of an assessment for a local improvement and to set aside the assessment because of alleged invalidity in the proceedings, the burden is on the plaintiff to establish the invalidity complained of. In Mayor, etc., of New York v. Second Avenue Railroad Co., 102 N. Y., 572 ; 2 St. Rep., 526, it was shown on the part of plaintiff that the street was out of repair, that the defendant, after due notice, neglected to put it in repair as required by its covenant, and thereupon the plaintiff proceeded to make the repairs at a certain cost for labor and materials, employing laborers at the usual wages and purchasing materials in the usual way. It was held that prima fade the amount expended was the measure of plaintiff’s recovery. These cases do not help us here.

The rights of the defendant were obtained from the act of the legislature. The city authorities had no right to increase the burden on defendant. They were given the right to establish and alter the grade but were not given the right to say what materials the defendant should use, or to decide what was necessary for defendant to do. The defendant having accepted the grant and built its railroad, there existed between it and the people, represented, as we may here assume, by the plaintiff, an obligation in the nature of a contaact. Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339 ; Chicago v. Sheldon, 9 Wall., 50. That being so, it is not in the province of either party by its own declaration to interpret the contract or fix the extent of the liability of the other. In the case cited from Gray, page 350, it is said : “ The interpretation and construction of contracts, when drawn in question between the parties, belongs exclusively to the judicial department of the government. The legislature have no more power to construe their own contracts with their citizens than those which individuals make with each other.” See also Cooke v. Boston & Lowell R. R., 133 Mass., 188; State v. St. Paul, etc., Railway Co., 35 Minn., 138; 3 Wood’s Railway Law, § 491.

_But it may be suggested that the city authorities had absolute authority to pave the street and direct the kind of pavement. The same statute that gave this authority provided for the manner of the payment of the expense of such paving, and did not charge any part of it on the street railroad company. The obligation of the defendant was not in any manner affected. It still continued liable to keep the portion of the street used by it in good and proper order and repair. So, it was ‘the duty of the common council, as commissioners of highways, to see to it that the streets were in proper repair, and the city was chargeable with the expense. This did not give them power to say what the defendant should reasonably have done in order to perform its agreement. Cooke v. Boston & Lowell R. R., 133 Mass., 188; 2 Wood’s Railway Law, 976, § 271. In United States v. Ross, 92 U. S., 281, it is said that the presumption that public officers have done their duty does not supply proof of independent and substantive facts.

It follows that the defendant is not bound by the determination of the plaintiff’s common council that an asphalt pavement should be laid. Such determination does not as against the defendant presumptively prove the necessity of such pavement. The plaintiff here seeks to recover damages for the non-fulfilment by defendant of its agreement. It is, therefore, incumbent on plaintiff to show, according to the ordinary rules of evidence, breach of such agreement and what expense has, by reason thereof, been incurred by it that was reasonably necessary. Neither of these things are shown. The plaintiff cannot, by its own declaration, determine the fact of breach, and cannot arbitrarily fix the method of repair.

Judgment reversed, and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.  