The opinion of the court was delivered by
Yeazey, J.
The question whether under existing statutes a highway may be laid across a railroad and built at the same level, which is one of the questions in this case, has been twice argued in the General Term, and once at a regular term.
It is insisted, first, that there is no authority under our statutes to lay a highway across a railroad. The claim is that the legislature having granted to railroad companies the right to take land for their railroads, being for public use, the land thus taken cannot again be taken for other public use, without express or at least implied legislative authority to that effect; and that our statutes neither express nor imply such authority. It is settled law that property already taken and held for public use by a corporation cannot be interfered with by another corporation for other public use, without legislative authority to that end. Pierce [239]*239on Railroads, 156, and cases there cited. But this authority may be created not only by express terms, hut it may arise and is created, when it is a necessary implication from the conferment of corporate power to carry out certain objects of general concern. In re City of Buffalo, 68 N. Y. 167; B. & O. & C. R. R. Co. v. Northwestern Reporter, Vol. 1, 469. This stands on the proposition that every grant of power carries with it such incidental powers as are requisite to enable the grant to accomplish its declared object. On these principles it has been held in numerous cases in several states that the power of a municipality to lay highways, includes the power to lay them across an existing railroad, when it can be done without essentially interfering with the railroad. A. N. R. R. Co. v. Brownell, 24 N. Y. 345; N. J. S. R. R. Co. v. L. B. Comrs. 39 N. J. L. 28; Bridgeport v. N. Y. & N. H. R. R. Co. 36 Conn. 255; Hannibal v. H. & St. J. R. R. Co. 49 Mo. 480; N. C. R. R. Co. v. Baltimore, 46 Md. 425; Atlanta v. C. R R. & B. Co. 53 Ga. 120.
The question in this case therefore rests upon the construction- to be given to section 3381 R. L., which is as follows: “ If, after laying out and making a railroad, a turnpike road or other way is so laid out as to cross said railroad, the turnpike road or other way may be so made as to pass under or over the railroad, and shall be so made as not to obstruct or injure it.”
This is a section of the general railroad law which was passed long after the enactment of the highway law. Indeed, railroads were unknown when the highway law was enacted; therefore, in its enactment the legislature could have had no direct reference to railroads; and it is a singular fact that no amendatory provisions are to be found in the highway statutes conferring any powers upon towns in respect to the crossing of railroads. The only suggestion upon the subject in all our statutes, is that contained in section 3381, of the general railroad law. As before seen, the [240]*240power to lay a highway across a railroad existed under the general authority to establish highways. The question is whether if laid across a railroad it could be built on a level with the track, or must go under or over it. We have no doubt but that by the word “ over ” in section 3381, was intended not upon but above, so the railroad should pass under the highway. This is evident from other provisions. The only case, to which we are referred, where this precise question has been raised, is that of the Boston & Maine R. R. Co. v. Mayor &c. of Lawrence, 2 Allen, 107. The Massachusetts statute was identical with ours; and the court there held that it prohibited the laying and building at the same level with the railroad. There was no other statute controlling the decision, as counsel have argued.
As the right to lay a way across a railroad existed prior to the enactment of section 3381, we see no reason why that right was not general to cross in any manner that should not essentially injure the railroad. The.railroad company obtains only an easement, a right of way, by eminent domain, not the fee. A crossing above or below would not at all interfere with the easement, or, if at all, certainly the interference would be much less than by a grade crossing. When a right of way is obtained by eminent domain, the right to build the way by cuts, fills, or tunnels, is undoubtedly subject to the maxim, sic utere tuo, &c. As we think that before this statute was enacted a highway laid across a railroad could be built at grade, or above or below, the only object of the statute must have been to restrict-or limit the method of building, not to confer a right. The word “may” can be construed as “shall” or “must,” when such was the legislative intention. It should be so construed if the legislature intended to impose a duty and not simply confer a privilege or discretionary power. If the railroad company held the fee of its road bed, the same result would follow. It is argued that the word “ may ” in section 3381, must receive the same construction as the [241]*241same word in the next section, where it is plainly used in the permissive sense. But there is no basis for this claim, because the two sections are so unlike in purpose. The first section is a provision as to the manner of building a highway across a railroad, by the town, without interfering with the railroad. The latter is an express grant of power to a railroad company, which has laid a railroad across a highway, to interfere with the latter by raising or lowering its grade.
Our attention has also been called to numerous other statutes in pari materia, by counsel on both sides; but none of them are so related to this section as to be convincing the one way or the other.
It is also claimed that this is the first time the question has been raised since section 3381 was passed in 1849, and that there has been a popular practical construction which should be adhered to. If it clearly appeared that railroad companies and towns, through their respective officers, had in fact given this section the construction which the defendant now claims for it, it should have great weight with the courts; but there may have been so many reasons why no question was made, independent of the view as to strict right, we think it cannot fairly be assumed that there has been this practical construction of the statute. There is nothing in the case to show how highways laid across railroads have been built. It is not claimed but that some have been over or under the railroad. It is easy to see that railroad companies may have preferred and agreed to grade crossings in many instances. It is mere speculation as to the number of highways laid across railroads since the latter were built. It is not probable that the number is large. Grade crossings are very numerous, but they mostly occurred by building railroads across highways instead of highways across railroads.
It is also claimed that if the right to build on grade with the railroad did not exist, then the existing grade crossings [242]*242are illegal and may be fenced by the railroad companies. This assumes that the companies did not assent to them. We apprehend that an attempt to block existing highways would find speedy remedy in the legislature, even if the coui’ts were powerless.
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The opinion of the court was delivered by
Yeazey, J.
The question whether under existing statutes a highway may be laid across a railroad and built at the same level, which is one of the questions in this case, has been twice argued in the General Term, and once at a regular term.
It is insisted, first, that there is no authority under our statutes to lay a highway across a railroad. The claim is that the legislature having granted to railroad companies the right to take land for their railroads, being for public use, the land thus taken cannot again be taken for other public use, without express or at least implied legislative authority to that effect; and that our statutes neither express nor imply such authority. It is settled law that property already taken and held for public use by a corporation cannot be interfered with by another corporation for other public use, without legislative authority to that end. Pierce [239]*239on Railroads, 156, and cases there cited. But this authority may be created not only by express terms, hut it may arise and is created, when it is a necessary implication from the conferment of corporate power to carry out certain objects of general concern. In re City of Buffalo, 68 N. Y. 167; B. & O. & C. R. R. Co. v. Northwestern Reporter, Vol. 1, 469. This stands on the proposition that every grant of power carries with it such incidental powers as are requisite to enable the grant to accomplish its declared object. On these principles it has been held in numerous cases in several states that the power of a municipality to lay highways, includes the power to lay them across an existing railroad, when it can be done without essentially interfering with the railroad. A. N. R. R. Co. v. Brownell, 24 N. Y. 345; N. J. S. R. R. Co. v. L. B. Comrs. 39 N. J. L. 28; Bridgeport v. N. Y. & N. H. R. R. Co. 36 Conn. 255; Hannibal v. H. & St. J. R. R. Co. 49 Mo. 480; N. C. R. R. Co. v. Baltimore, 46 Md. 425; Atlanta v. C. R R. & B. Co. 53 Ga. 120.
The question in this case therefore rests upon the construction- to be given to section 3381 R. L., which is as follows: “ If, after laying out and making a railroad, a turnpike road or other way is so laid out as to cross said railroad, the turnpike road or other way may be so made as to pass under or over the railroad, and shall be so made as not to obstruct or injure it.”
This is a section of the general railroad law which was passed long after the enactment of the highway law. Indeed, railroads were unknown when the highway law was enacted; therefore, in its enactment the legislature could have had no direct reference to railroads; and it is a singular fact that no amendatory provisions are to be found in the highway statutes conferring any powers upon towns in respect to the crossing of railroads. The only suggestion upon the subject in all our statutes, is that contained in section 3381, of the general railroad law. As before seen, the [240]*240power to lay a highway across a railroad existed under the general authority to establish highways. The question is whether if laid across a railroad it could be built on a level with the track, or must go under or over it. We have no doubt but that by the word “ over ” in section 3381, was intended not upon but above, so the railroad should pass under the highway. This is evident from other provisions. The only case, to which we are referred, where this precise question has been raised, is that of the Boston & Maine R. R. Co. v. Mayor &c. of Lawrence, 2 Allen, 107. The Massachusetts statute was identical with ours; and the court there held that it prohibited the laying and building at the same level with the railroad. There was no other statute controlling the decision, as counsel have argued.
As the right to lay a way across a railroad existed prior to the enactment of section 3381, we see no reason why that right was not general to cross in any manner that should not essentially injure the railroad. The.railroad company obtains only an easement, a right of way, by eminent domain, not the fee. A crossing above or below would not at all interfere with the easement, or, if at all, certainly the interference would be much less than by a grade crossing. When a right of way is obtained by eminent domain, the right to build the way by cuts, fills, or tunnels, is undoubtedly subject to the maxim, sic utere tuo, &c. As we think that before this statute was enacted a highway laid across a railroad could be built at grade, or above or below, the only object of the statute must have been to restrict-or limit the method of building, not to confer a right. The word “may” can be construed as “shall” or “must,” when such was the legislative intention. It should be so construed if the legislature intended to impose a duty and not simply confer a privilege or discretionary power. If the railroad company held the fee of its road bed, the same result would follow. It is argued that the word “ may ” in section 3381, must receive the same construction as the [241]*241same word in the next section, where it is plainly used in the permissive sense. But there is no basis for this claim, because the two sections are so unlike in purpose. The first section is a provision as to the manner of building a highway across a railroad, by the town, without interfering with the railroad. The latter is an express grant of power to a railroad company, which has laid a railroad across a highway, to interfere with the latter by raising or lowering its grade.
Our attention has also been called to numerous other statutes in pari materia, by counsel on both sides; but none of them are so related to this section as to be convincing the one way or the other.
It is also claimed that this is the first time the question has been raised since section 3381 was passed in 1849, and that there has been a popular practical construction which should be adhered to. If it clearly appeared that railroad companies and towns, through their respective officers, had in fact given this section the construction which the defendant now claims for it, it should have great weight with the courts; but there may have been so many reasons why no question was made, independent of the view as to strict right, we think it cannot fairly be assumed that there has been this practical construction of the statute. There is nothing in the case to show how highways laid across railroads have been built. It is not claimed but that some have been over or under the railroad. It is easy to see that railroad companies may have preferred and agreed to grade crossings in many instances. It is mere speculation as to the number of highways laid across railroads since the latter were built. It is not probable that the number is large. Grade crossings are very numerous, but they mostly occurred by building railroads across highways instead of highways across railroads.
It is also claimed that if the right to build on grade with the railroad did not exist, then the existing grade crossings [242]*242are illegal and may be fenced by the railroad companies. This assumes that the companies did not assent to them. We apprehend that an attempt to block existing highways would find speedy remedy in the legislature, even if the coui’ts were powerless. It would seem that there ought to be provision for laying and building highways across railroads at the same level, under proper regulations and restrictions, but not without them. As a general rule, the public interested in the use and safety of a railroad is much larger than that interested in a single highway. They'are both devoted to public use. Every grade crossing, though it may accommodate the few who use the highway, increases the danger of the multitude who use the railroad. Our statutes are specific and full in regulations for the maintenance and protection of crossings created by building railroads across highways, but in comparison are notably wanting in such regulations in case of crossings created by building highways across railroads. It is better that grade crossings should not be increased until those regulations are provided. The legislature of Massachusetts have wisely regarded grade crossings so objectionable that they are not authorized for mere reasons of public convenience, but only when public necessity requires it. The objection to grade crossings increases with the frequency and rapidity of trains, and the growing habit of the people to travel by rail. Whether it was oversight in legislation, or d e-sign, that our statutes should not authorize the building of highways across railroads at the same level, we think they are so left, and that the reasons for this view, upon comparison of all the statutes on the subject, are quite as strong as they were in Massachusetts, when the court of that State adopted the same construction of their statute, from which ours was evidently copied. If it is desirable to change the statute the time is not distant when it may be done, and under such regulations as will protect all interests and especially the safety of the travelling public.
[243]*243It is insisted, that the orator cannot resort to chancery as it had remedy at law. This would seem to' be so as to the question of right to lay the highway across the railroad. Whether it may invoke the remedy of an injunction in chancery to restrain the building at grade would depend upon the facts alleged in the bill. If the orator could have and had alleged that it was informed and had reason to believe and did believe that the selectmen, when they laid said highway, intended to build the same above or below 'the railroad as they might lawfully do, and not at level with it, and for that reason neglected seasonably to appeal, and thereby lost its opportunity to test the right to a grade crossing, and had alleged irreparable injury, etc., we think it would have made a case for remedy by injunction; but the bill is wahting in all these respects, and on the other hand says, “that said highway so to be laid would cross the said Vermont Central R. R. at grade,” &c. It is quite plain that the description of the proposed highway, in the order of the selectmen laying it, imported a laying at grade with the railroad. And it appears from the agreed statement of facts that the selectmen refused to entertain the idea of a crossing above or below grade. An appeal would therefore have afforded complete'remedy. For this reason the pro forma decree of the Court of Chancery dismissing the bill must be affirmed. Kerr’s Injunctions in Equity, 3. We have taken the occasion to decide the other questions in this case, as they are also raised and have been argued in the case of the Connecticut & Passumpsic R. R. Co. v. The Town of St. Johnsbury, which is a suit at law upon appeal from the order of the selectmen, and stands in this court on exceptions to the judgment of the County Court, on report of the commissioners.
Decree affirmed and cause remanded.