Carpenter, J.
Over thirty years ago the defendants-were duly incorporated, and authorized to lay out and construct a railroad along or near the line of the Farmington Canal from [342]*342New Haven northerly to the town of Farmington. The road was located in 1846. The location in the town of Hamden was very near a highway, then the Cheshire turnpike road, and now an ordinary town road, which location was approved by the board of commissioners appointed for that purpose by the General Assembly. • The road was constructed as located, and has been in operation since 1848.
The State’s Attorney for New Haven County now files an application for a mandamus.
After alleging the powers and duties of the railroad company in locating and constructing their railroad with reference to highways generally, and with reference to the Cheshire turnpike road in particular, he avers that said corporation in constructing their railroad through the town of Hamden located and constructed, the same so that it intersects and crosses the road of the Cheshire Turnpike Company, and that portion of the same which had been constructed upon an ancient highway; and that it ran and still does run along and upon said highway for a distance of more than two miles; that said corporation did not then and have not since restored said road to its former state, or in sufficient manner not to impair its usefulness, but left the sarnie and have ever since suffered and allowed the same to remain and become out of repair, in dangerous condition, and impaired in usefulness; that said corporation did not so locate their railway that in the construction, completion, use and occupation thereof, it should not in any way interfere with the said turnpike road, so as to obstruct, impede or endanger the safety of the public traveling thereon, but so located the same that in its construction, completion, use and occupation, it then was, ever since has been, and now is, an interference with the said road, so as to obstruct, impede, and endanger the safety of the public traveling thereon. The Attorney then prays for a mandamus commanding the defendants to restore said highway to its former state, or in sufficient manner not to impair its usefulness, and to keep the same in its' former condition, or in such . condition that its usefulness is not impaired; also “ to so locate their said railroad that in the construction, completion, use [343]*343and occupation thereof, it shall not in any way interfere with said turnpike road, so as to obstruct, impede or endanger the safety of the public in traveling thereon. The defendants, in answer to said application, set up the proceedings in the location and construction of the railroad, the action of the railroad commissioners thereon, and the action of a special committee appointed by a judge of the Superior Court, according to the provisions of the charter, to determine whether the defendants had complied with their charter in regard to said turnpike road.
The Superior Court, after stating the formal and undisputed facts alleged in the application and answer, finds as follows: —“That the location of said railroad in relation to said turnpike between the termini aforesaid is now, at the time thereof was, and ever since has been, such that the use and occupation thereof by transporting persons and property thereon, by the power and force of steam, do expose persons traveling upon said turnpike to the danger of accident by their horses becoming frightened, and if, within the meaning of the defendants’ charter, this makes said railroad obstruct, impede or endanger the safety of the public traveling on said highway, then I find that said railroad does obstruct, impede or endanger the safety of the public traveling on said highway; and if the foregoing facts, within the meaning of the defendants’ charter, constitute a failure on the part of the defendants to restore said highway to its former state, or in a sufficient manner not to impair its usefulness, then I find that the defendants did fail to restore said highway to its former state, or in a sufficient manner not to impair its usefulness.”
• The case thus presented is reserved for the advice of this-court.
The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.
The first question which presents itself for our consideration is, whether it is now the plain positive duty of these defendants to restore the highway to its former condition of usefulness; that is, to remove the danger incident to its use.
[344]*344The solution of this question depends upon the proper construction and application of the first clause of the sixth section of the charter, (Private Laws, Yol. 4, p. 890,) which is as follows: — “ That whenever it shall be necessary for the construction of their single or double railroad or way to intersect or cross any stream of water or watercourse, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same; but the said company shall restore the said stream or watercourse, or road or highway thus intersected, to its former state, or in sufficient manner not to impair its usefulness.”
The railroad does not cross this highway. The word “intersect” ordinarily means the same as to cross; literally to cut into or between. The two words seem to be used in the same sense, as is apparent from the fact that the word intersected only is used in the Tatter part of the quotation; whereas, if they were used in different senses, we should expect to find the words “or crossed ” also used. But if it be conceded that the word “ intersect ” is to be understood in the sense of touching, or coming in contact with, we think it cannot be extended so as to embrace a case like this, where the lay-out of the railroad covers a portion of the lay-out of the highway without disturbing or interfering with the traveled part of the highway. The word “restore” imports a physical impairment of the road bed itself. It is an apt word when used with reference to such a road, but is inappropriate when used with reference to a road physically complete, and to indicate the removal of an obstruction which has no connection with the traveled path, but is an obstruction only as it is calculated at certain times to frighten horses. If, in any sense, a highway, the use of which is dangerous, may be said to be restored when the danger is removed, it is manifest that such a restoration is not contemplated in this portion of the charter. A large majority of the cases to which this clause applies are road-crossings. Whether the crossing is at grade or effected by means of a bridge, there is usually some change in the construction of the highway which involves a restoration. However complete that restoration may be, the danger [345]*345that horses will be frightened still remains. That danger is inevitable wherever the two ways are in close proximity to each other. If there is no crossing, and the road bed itself is undisturbed, no structural restoration is required. Restoration in the sense of removing all danger is impossible.
This clause in the charter therefore was not intended to impose upon the corporation the duty of removing all danger incident to the use of the railroad; consequently, a writ compelling a restoration of the highway must be denied.
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Carpenter, J.
Over thirty years ago the defendants-were duly incorporated, and authorized to lay out and construct a railroad along or near the line of the Farmington Canal from [342]*342New Haven northerly to the town of Farmington. The road was located in 1846. The location in the town of Hamden was very near a highway, then the Cheshire turnpike road, and now an ordinary town road, which location was approved by the board of commissioners appointed for that purpose by the General Assembly. • The road was constructed as located, and has been in operation since 1848.
The State’s Attorney for New Haven County now files an application for a mandamus.
After alleging the powers and duties of the railroad company in locating and constructing their railroad with reference to highways generally, and with reference to the Cheshire turnpike road in particular, he avers that said corporation in constructing their railroad through the town of Hamden located and constructed, the same so that it intersects and crosses the road of the Cheshire Turnpike Company, and that portion of the same which had been constructed upon an ancient highway; and that it ran and still does run along and upon said highway for a distance of more than two miles; that said corporation did not then and have not since restored said road to its former state, or in sufficient manner not to impair its usefulness, but left the sarnie and have ever since suffered and allowed the same to remain and become out of repair, in dangerous condition, and impaired in usefulness; that said corporation did not so locate their railway that in the construction, completion, use and occupation thereof, it should not in any way interfere with the said turnpike road, so as to obstruct, impede or endanger the safety of the public traveling thereon, but so located the same that in its construction, completion, use and occupation, it then was, ever since has been, and now is, an interference with the said road, so as to obstruct, impede, and endanger the safety of the public traveling thereon. The Attorney then prays for a mandamus commanding the defendants to restore said highway to its former state, or in sufficient manner not to impair its usefulness, and to keep the same in its' former condition, or in such . condition that its usefulness is not impaired; also “ to so locate their said railroad that in the construction, completion, use [343]*343and occupation thereof, it shall not in any way interfere with said turnpike road, so as to obstruct, impede or endanger the safety of the public in traveling thereon. The defendants, in answer to said application, set up the proceedings in the location and construction of the railroad, the action of the railroad commissioners thereon, and the action of a special committee appointed by a judge of the Superior Court, according to the provisions of the charter, to determine whether the defendants had complied with their charter in regard to said turnpike road.
The Superior Court, after stating the formal and undisputed facts alleged in the application and answer, finds as follows: —“That the location of said railroad in relation to said turnpike between the termini aforesaid is now, at the time thereof was, and ever since has been, such that the use and occupation thereof by transporting persons and property thereon, by the power and force of steam, do expose persons traveling upon said turnpike to the danger of accident by their horses becoming frightened, and if, within the meaning of the defendants’ charter, this makes said railroad obstruct, impede or endanger the safety of the public traveling on said highway, then I find that said railroad does obstruct, impede or endanger the safety of the public traveling on said highway; and if the foregoing facts, within the meaning of the defendants’ charter, constitute a failure on the part of the defendants to restore said highway to its former state, or in a sufficient manner not to impair its usefulness, then I find that the defendants did fail to restore said highway to its former state, or in a sufficient manner not to impair its usefulness.”
• The case thus presented is reserved for the advice of this-court.
The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.
The first question which presents itself for our consideration is, whether it is now the plain positive duty of these defendants to restore the highway to its former condition of usefulness; that is, to remove the danger incident to its use.
[344]*344The solution of this question depends upon the proper construction and application of the first clause of the sixth section of the charter, (Private Laws, Yol. 4, p. 890,) which is as follows: — “ That whenever it shall be necessary for the construction of their single or double railroad or way to intersect or cross any stream of water or watercourse, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same; but the said company shall restore the said stream or watercourse, or road or highway thus intersected, to its former state, or in sufficient manner not to impair its usefulness.”
The railroad does not cross this highway. The word “intersect” ordinarily means the same as to cross; literally to cut into or between. The two words seem to be used in the same sense, as is apparent from the fact that the word intersected only is used in the Tatter part of the quotation; whereas, if they were used in different senses, we should expect to find the words “or crossed ” also used. But if it be conceded that the word “ intersect ” is to be understood in the sense of touching, or coming in contact with, we think it cannot be extended so as to embrace a case like this, where the lay-out of the railroad covers a portion of the lay-out of the highway without disturbing or interfering with the traveled part of the highway. The word “restore” imports a physical impairment of the road bed itself. It is an apt word when used with reference to such a road, but is inappropriate when used with reference to a road physically complete, and to indicate the removal of an obstruction which has no connection with the traveled path, but is an obstruction only as it is calculated at certain times to frighten horses. If, in any sense, a highway, the use of which is dangerous, may be said to be restored when the danger is removed, it is manifest that such a restoration is not contemplated in this portion of the charter. A large majority of the cases to which this clause applies are road-crossings. Whether the crossing is at grade or effected by means of a bridge, there is usually some change in the construction of the highway which involves a restoration. However complete that restoration may be, the danger [345]*345that horses will be frightened still remains. That danger is inevitable wherever the two ways are in close proximity to each other. If there is no crossing, and the road bed itself is undisturbed, no structural restoration is required. Restoration in the sense of removing all danger is impossible.
This clause in the charter therefore was not intended to impose upon the corporation the duty of removing all danger incident to the use of the railroad; consequently, a writ compelling a restoration of the highway must be denied.
The next question is, whether a writ should be granted, as prayed for, compelling the corporation to locate their railroad so as to avoid this danger. The object is to compel the defendants to re-locate their railroad.
The facts of the case more particularly pertinent to this inquiry are the following: — The lay-out of the railroad covers a portion of the western limits of the turnpike the greater part of the way for more than two miles. The space between the center line of the railroad, (which is also the center of the track,) and the east line of the turnpike, varies in width from forty-five to sixty-six feet, except for a short distance where it is only thirty-six feet, and the travel is obliged to pass east of the railroad. Trains run much faster and more frequently than they formerly did, and by reason of the increase of population and business there is more travel on the highway than formerly. On the east of the railroad track and about one rod distant from the center line is a substantial railing, erected by the defendants about three years since by order of the railroad commissioners. In many places for a considerable distance this railing, was placed nearly in the center of the then traveled path.
It cannot be denied that this is an unusually dangerous place. It would seem that something ought to be done to make it less dangerous and more convenient for the public. It is not for us however to indicate the remedy. The question is, whether any legal duty now rests upon these defendants to change the location of their railroad. If any such duty exists, it will be found in some statute, public or private.
The charter authorizes the company to locate and construct [346]*346‘within certain limits a railroad. They located the road, the location was approved by the railroad commissioners, and the road was constructed. In exercising the power thus conferred upon them they exhausted it. We find nothing in the charter which authorizes them to re-locate the road or any part of it. Indeed it.is not claimed that such power is conr ferred. But it is strenuously urged that the road was not located and constructed as required by the charter. In the sixth section it is provided “that said railway shall be so located that in the construction, completion, use and occupation thereof, it shall not in any way interfere with the turnpike road of the'Cheshire Turnpike Company, so as to obstruct, impede or endanger the safety of the public in traveling thereon.” It is now insisted that the use and occupation of the railroad does obstruct, impede and endanger the public. If this was an open question it is difficult to see what answer could be made to this claim. But unfortunately it is res adjudicata. The same section further provides: — “And said corporation may apply to any judge of the Superior Court, who may by law judge between the parties, who, after notice given, may appoint three disinterested persons to determine whether said corporation has complied with the provisions aforesaid; and if approved by them, their decision shall be final.”
Pursuant to this provision three disinterested persons were duly appointed by the Hon. William L. Storrs, then a judge of the Superior Court, to determine whether the company had complied with the provisions of the sixth section. The persons so appointed, after hearing the railroad company and the Cheshire Turnpike Company, and after having carefully examined the railroad as located and constructed," concluded a report of their doings in the premises as follows: — “We are of opinion and do find that the New Haven & Northampton Company have so located their said railroad, as that in the construction, completion, use and occupation thereof, it will not in any way interfere with the turnpike road of the said turnpike company, so as to obstruct, impede or endanger the safety of the public in traveling thereon; and we are of the [347]*347opinion and do find that said New Haven & Northampton Company have fully complied with the provision of said sixth, section of the act aforesaid, and we do hereby approve of the same.”
We can entertain no doubt that after that decision the location of the railroad under the charter was conclusively determined. It is impossible without doing violence to the language used to give to the charter and the proceedings under it any other interpretation. Neither the public nor individuals, unless by legislative action, had any power or right, directly or indirectly, to change or cause to be changed the line of the railroad or any part of it. Nor had the railroad company itself any such power. The railroad could be located but once and that had been done. Subsequent legislation allowed and provided for certain changes for the purpose of straightening curves and improving the lines of sight, but we are not aware of any enactment which authorized an entire change of the track for two miles, involving as it does the taking of other lands and interfering with individual rights of property; much less do we find in the statute any positive command to make the contemplated change. Hence the duty to do so is not clear, and the power and right to do so are at least doubtful.
We think therefore that this whole matter, including the location of the railroad, its construction, and the effect of operating it upon travel over and along the Cheshire turnpike road, is res adjudicaba.
The only change which has since taken place is that now a greater number of persons are exposed to the danger and the danger itself is increased by reason of the greater speed and number of trains. But such change of itself, in the absence of further legislation, imposes upon the defendants no plain, positive duty. The increase of danger in the manner indicated and the increase of travel must have been anticipated and considered in the former proceedings. Such increase therefore will not justify the court in compelling the defendants to exercise a doubtful power.
In opposition to this view it is claimed that the powers and [348]*348duties of the railroad commissioners and of the special committee related only to property rights, and that they had jurisdiction only of questions between the defendants and persons whose property was affected, and therefore that this proceeding, instituted as it is in behalf of the public, is unaffected by the doings of those tribunals.
In support of this claim stress is laid upon the fact that the commissioners only gave notice to the owners of land taken, and that the special committee only gave notice to the Cheshire Turnpike Company, and that the public had no notice to appear before either of these tribunals.
We cannot doubt that the legislature intended to protect, as far as practicable, every right and interest, either of individuals or of the public, which could be affected by the construction and operation of this railroad. Of course it was foreseen that its operation along its entire length would be attended with more or less danger. In the country where population is sparse the danger is comparatively slight. There the wisdom and vigilance of the commissioners and the interest of the railroad company to avoid as far as possible all danger were relied on to secure -the construction of the road in the best place for safety. In the city of New Haven the charter provides that the company shall construct and use their road in such manner and subject to such rules and regulations as the common council of the city shall prescribe. Between these two extremes is the case of the Cheshire turnpike road. There it was obvious that the operation of the road would be attended with more than ordinary danger. Hence the special commission was to be-appointed to see that the construction, use and occupation of the railroad near the turnpike road did not “obstruct, impede or endanger the safety of the public in traveling thereon.” These precautions the legislature deemed sufficient for the protection of the public. If now they are found inadequate the remedy is not with the courts but with the legislature. It will hardly be contended that the Superior Court upon the complaint of the State’s Attorney has power to compel the company to carry their-road over or under a highway by means of a bridge, [349]*349however dangerous such crossing may be. A special act of the legislature was deemed essential for such a purpose in the case of The Norwich & Worcester Railroad Company v. Killingly, 25 Conn., 402. The case supposed and the case at bar are precisely the same in principle.
It is further contended that the sixth section imposes upon the defendants a continuing obligation; that although the turnpike road may have been restored to its former condition of usefulness, and so left at first that travel thereon was not obstructed or endangered, yet the road in its present state is such that travel thereon is obstructed and endangered and its usefulness is impaired. The authorities cited from our own reports in support of this claim do not fully sustain it. Burritt v. City of New Haven, 42 Conn., 174; English v. New Haven & Northampton Co., 32 Conn., 240. Both these cases arose in the city of New Haven. By a reference to the fifth section of the charter it will be seen that the company is required to “construct and use that part of said road within the limits of the city of New Haven in such manner and subject to such rules and regulations as the common council of said city shall prescribe.” By an act of the legislature passed in 1857, amending the charter of the city of New Haven, it is provided that the “court of common council shall have supervision over all bridges crossing railroads in said city, and may from time to time order the widening or repairing of said bridges in such manner and within such times as in their judgment public convenience may require.” This act further provides that if any railroad company shall neglect to obey such order, the city may do the act' required, and recover the expense of the railroad company. These acts controlled the cases cited, but they have no application to the case at bar.
Eor "these reasons we advise, the Superior Court that this application must be dismissed.
In this opinion the other judges concurred.