reversing the engine, &c., where no objection exists as to the construction of a turn-out at that particular point; such liberty is subject to the police power of the municipal authority, and must be so constructed as not unnecessarily to interfere with the free use of a street.1 The Philadelphia, Wilmington and Baltimore Railroad Company made a railroad, under authority of law, through the city of Wilmington, in the State of Delaware, by virtue of which the company had power to use locomotive engines propelled by steam, with all the incidents of that mode of conveyance; the company being responsible, as individuals would be, for the exercise of due care and prudence. In an action on the case, against the company, for negligently running over the plaintiff's not well-broke-horse, the Court held-"Being authorized to use steam as the propelling power of these engines, the smoke and noise of steam escaping are indispensable, as well as the noise occasioned by the cars, and the usual notice bells; and the company would not be liable from mere accidents arising from fright to horses occasioned by these noises. In the exercise, however, of the right to use this steam-power in passing through a populous town, the company are bound to use all due precaution to avoid danger to others, and to travel at a

continuance, the road in question, under the evidence, is not only a public nuisance, of which the plaintiffs have a legal right to complain, as specially injurious to them in their ingress and egress to and from their place of business on the street. “Such a nuisance, it is well established by numerous decisions, can and ought to be restrained by injunction, if demanded, as in this case, by the parties specially aggrieved.

"The judgment, therefore, of the Special Term, we all agree, should be reversed, and a perpetual injunction awarded.

“ Clerke, J. — For the reasons above expressed in Judge Roosevelt's opinion, I concur in the conclusion at which both my associates arrived. See 18 Barb. Sup. Ct. R. 222.

1 New Orleans, &c. Railroad Co. v. 2d Municipailty, 1 Louis. Annual R. 128; and see March v. Concord Railroad Co. (New Hamp.) reported in Law Rep. for February 7, 1856, p. 570 ; in which case it was held, that the owners of a railroad company are liable, like towns, for all injuries sustained from defects in their road, by persons travelling either on foot or in their own carriages, or in those of other

persons.

rate of speed prudent under the circumstances. This prudent and proper rate of speed is either regulated by law, or by the usual and customary speed. It will be for the jury to say, if, on the evidence, the defendants were going on their train at the usual and proper rate of speed, or if they abused, in any manner, their lawful right."1

§ 34. In the city of New York, and also in other cities, it is believed that horse-power is generally used for railways in streets. The charter of the Cambridge Railroad Company, (the railroad from Boston to Cambridge,) after incorporating certain individuals, their associates and successors, thus provides: "Said tracks or roads shall be operated and used by said corporation with horse-power only, and it shall not connect its track with any other railroad on which other power is used. The mayor and aldermen of said cities respectively shall have power at all times to make all such regulations as to the rate of speed and mode of use of said tracks as the public convenience and safety may require. Said corporation shall maintain and keep in repair such portion of the streets and bridges respectively as shall be occupied by their tracks, and shall be liable for any loss or injury that any person may sustain by reason of any carelessness, neglect or misconduct of its agents and servants in the management, construction, or use of said tracks, roads or bridges; and in case any recovery shall be had against either of said cities or said bridge corporation by reason of such defect or want of repair, said corporation shall be liable to pay the said cities and said bridge corporation respectively, any sums thus recovered against them, together with all costs and reasonable expenditures incurred by said cities or said bridge corporation, or either of them, in the defence of any such suit or suits in which recovery shall be had, and shall not encumber any portion of the streets or bridges not occupied by the road or track."

1 Burton v. Philadelphia, Wilmington and Baltimore Railroad Co. 4 Harring. (Del.) R. 252. See 18 Barb. (N. Y.) Sup. Ct. R. 222.

8. Bridges.

§ 35. A bridge has been defined "a building of brick, wood or iron, erected across a river, ditch, valley, or other place otherwise impassable, for the convenience and benefit of travellers." Again, "a building constructed over a river, creek or other stream, or over a ditch or other place, in order to facilitate the passage over the same."2 The term "bridge," is a comprehensive one, and embraces every structure in the nature of a bridge, whether over a large stream or a mere culvert or sluiceway. There are, as is generally well known, bridges of a different character. A private bridge is one erected for the use of one or more private persons, although it may occasionally be used by the public.

3

4

§ 36. "How far," says a late writer on Criminal Law,5 "it is essential to the legal character of a bridge, that water should flow under it, may not be entirely clear; but it need not flow at all seasons of the year; especially if there is one structure, having several arches, the whole may be deemed in law a bridge, though the water pass under some of the arches only at flood times.

§ 37. A bridge with lateral embankments, erected by a railroad corporation for the purpose of raising a highway, and

1 Whart. Lexicon, 114.

2 1 Bouv. Law Dict. 224.

3 See pamphlet entitled "A Practical Compend of the Powers and Duties of Commissioners and Overseers of Highways in the State of New York, p. 12. In that State, whenever new roads are laid out in such direction as cross the line of any canal, and in such manner as to require the construction of a new bridge, such bridge must be constructed and forever maintained at the expense of the town in which it may be situate. Ibid., and 1 N. Y. Rev. Sts. 247, 248, § 174, 175, (3d ed.) 279, §§ 220, 221.

4 See ante, § 1.

5 1 Bishop on Criminal Law, § 183.

6 And he refers to Rex v. Derbyshire, 22 B. 145; 2 Gale & Dav. R. 97; 6 Jur. 438, and cases there cited.

carrying over their roads, is as much a part of the structure authorized by the charter, as the railroad itself.1

§ 38. Public bridges may be divided into three classes; first, those which belong to the public, as state, county or townshipbridges, over which all people have a right to pass, without or with paying toll; these are built by public authority at the public expense, either of the State itself, or of a district or portion of the State; secondly, those which have been built by companies, (like turnpike and railroad companies,)2 or at the expense of private individuals, and over which all persons have a right to pass, on the payment of a toll fixed by law; thirdly, those which have been built by private individuals, and which have been surrendered or dedicated to the use of the public. And a bridge may be a public bridge which is used by the public at all such times as are dangerous to pass through the river.a

3

§ 39. A causeway and bridge were only used by the public in time of floods, and in the time of very high floods the bridge itself was impassable, but they were at all times open to the public; and this, it was held, was a public bridge.5

§ 40. A public bridge being a highway, it follows, that those principles of the common law which relate to highways in general, are alike applicable to public bridges; but although the principles are the same, yet from a difference in the nature of the respective objects of their operation, their reduction to practice in the one case varies from that of the other. A

1 Parker v. Boston and Maine Railroad, 3 Cush. (Mass.) R. 107; Sussex v. Strader, 3 Harrison, (N. J.) R. 168.

2 See ante, § 8 and 14.

3 Rex v. Inhabitants of Bucks, 12 East, R. 200; Rex v. Inhabitants of Northampton, 2 M. & Sel. R. 262; Piscataqua Bridge Co. v. N. Hamp. Bridge Co. 7 N. Hamp. R. 59; Callender v. Marsh, 1 Pick. (Mass.) R. 432; Charles River Bridge v. Warren Bridge, 7 Pick. (Mass.) R. 344, and S. C. 11 Peters, (U. S.) R. 539; and see 1 Campb. R. 26, n.

4 Rex v. Inhabitants of Northampton, 2 M. & Sel. R. 262. And see post, Ch. III.

5 Rex v. Inhabitants of Devon, 2 Ry. & Mood. R. 144.

common way may, with the consent of the proprietor, be at once subject to general user, without any antecedent act to bring it into existence; but a bridge must have been erected before it can be traversed, and this distinction is the foundation of all the difference between the two cases.' 1 The term "highway," does not import a bridge; and in any case where there is occasion to notice any of the differences which exist between highways generally, and bridges, it is indispensable that the difference should be marked by the use of the terms appropriated to each. So that if a party is to be charged with neglect to build or repair a bridge, it must be by the term bridge," which alone describes such a structure.2

66

3

§ 41. No State constitution, it is believed, gives the legislature, in terms, a right to make bridges, but such power has always been exercised, and no one doubts the legislative power to make such grants. An act of the legislature authorizing the erection of a bridge over navigable water, within the limits of the State, is clearly constitutional. It was said by the counsel, in the case just referred to at the bottom, that the grant of a right to build a bridge, was upon the petition, and for the

4

1 Wellbeloved on Law of Highways, 4, 324; Shelford on Highways, 34. Woolrych says: "The principal circumstance necessary to constitute a public bridge, is, that the people at large may have a free and uninterrupted use of it, not upon sufferance, but as a matter of right." Woolrych, Law of Ways, 196. 2 State v. Canterbury, 8 Foster, N. Hamp. R. 195.

3 Piscataqua Bridge Co. v. New Hamp. Bridge Co. 7 N. Hamp. R. 35; and see Fletcher v. Peck, 6 Cranch, (U. S.) R. 128; Central Bridge Corp. v. Bailey, 8 Cush. (Mass.) R. 389; Ib. v. Sleeper, 8 Cush. (Mass.) R. 324; South Carolina Railroad Co. v. Jones, 4 Rich. (S. C.) Eq. R. 459; Hall v. Boyd, 14 Georgia R. 1; Towles v. Justices, &c. 14 Georgia R. 301; Erie City v. Schwingle, 10 Harris, (Penn.) R. 384; Indianapolis v. McClure, 2 Cart. (Ind.) R. 147; Meadville v. Erie Canal Co. 6 Harris, (Penn.) R. 66; Harrell v. Ellsworth, 17 Ala. R. 576; Damariscota Toll-bridge Co. v. Cutter, 1 Red. (Me.) R. 357; State v. Milo, 2 Red. (Me.) R. 57; Mayor, &c. v. Macon and Western Railroad Co. 7 Geo. R. 221; Strong v. Dunlap, 10 Humph. (Tenn.) R. 423; State v. Gilmanton, 14 N. Hamp. R. 467; Schuylkill Bridge v. Frailey, 13 S. & R. (Penn.) R. 422; Chambersburg, &c. Co. v. Commissioners, 6 S. & Rawle, R. 229.

4 Commonwealth v. Breed, 4 Pick. (Mass.) R. 460.