State v. Lehigh Valley Railroad

100 A. 167, 90 N.J.L. 340, 1917 N.J. LEXIS 339

• Court: Supreme Court of New Jersey
• Decided: March 5, 1917
• Status: Published

Opinion

Per Curiam.

We conclude that the judgment brought up should be affirmed, substantially for the reasons given in the opinion of Mr. Justice Swayze in the Supreme Court.

We are not .called upon to decide as between the present plaintiff in error and its lessor, the Morris-Canal Company, which one is bound under the contractual relations existing between them, to bear the expense of maintaining bridges across the canal. In the case of Ryerson v. Morris Canal Co., 71 N. J. L. 381, relied oh by counsel and discussed in the opinion below, the question was whether by the act of leasing-under express legislative authority, the canal company could “transfer * * * the duty of maintaining the bridges,” and this was properly decided in the negative; but the question whether by leasing in perpetuity and taking complete possession of all the property and franchises of the canal company, the lessee, had as between itself and the state assumed equally with the canal company the duty of maintaining those bridges, was not involved and was not decided.

We agree with the conclusion of the Supreme Court that the lessee took cum onere, and, consequently, was laid under the same duty toward the state and the public, respecting bridges, as its lessor. This makes it unnecessary to rely on the point suggested by the court below, that the bridge in question would be a nuisance if unauthorized by statute and so built as to obstruct the highway. This is challenged as not supported by any allegation in the indictment. For the purposes of this decision we disregard it and express no opinion thereon.

The judgment is affirmed.

• For affirmance—The Chancellor, Garrison, Trenohaed, Parker, Minturn, Kalisoh, Black, White, Heppeni-ieimer, Williams, Gardner, JJ. 11.

For reversal—Kone.