[136]*136The opinion of the court was delivered by
Veazey, J.
This suit was brought to recover of the defendant railroad company the amount of a judgment which had been rendered, against the plaintiff town for injury to a traveller upon a highway by reason of its insufficiency which consisted of an embankment or fill constituting an approach in the highway to a railroad crossing, and having no railing at the sides of the fill to protect the traveller from going off.
The defendant company was cited in to defend the former suit but did not appear. The defendant filed a general demurrer to the writ and declaration which was overruled and the declaration adjudged sufficient, to which the defendant excepted.
The only objection urged under the demurrer is that the defendant company was in possession of this railroad and operating the same as receiver and manager under the order and appointment of the Court of Chancery, and the declaration does not allege that leave was obtained of that court to bring this suit, therefore the County Court had no jurisdiction. The case of Lyman against this same defendant lately decided, 59 Vt. 167, is full authority and controlling against the defendant on this point.
The County Court having adjudged the declaration sufficient, the cause went to trial by jury and further exceptions were taken.
This suit was based upon section 3383 of the Revised Laws, which was first enacted in 1852 and 1855, and after the act of incorporation of the Vermont Central railroad company and after its railroad was built across the highway in question. Contrary to the defendant’s requests the court charged the jury that notwithstanding the charter of the railroad company was prior and was exempt from amendment and repeal the enactment now incorporated in section 3383 R. L. was competent, applicable, and controlling upon the railroad company and did [137]*137not infringe any of the chartered rights of the company, and that it applied to what constituted the railroad crossing as a whole although not wholly within the limits of the railroad land. To this ruling the defendant excepted.
The railroad land at this point was six rods wide. The track was six feet above the grade of the highway before the railroad was built, and in constructing the approaches on the highway to the crossing the embankment or fill extended beyond the limit of the railroad land and the injury to the traveller occurred on this fill about thirty hive feet outside the surveyed limits.
The charter of this railroad company was granted in 1843, before any railroads had been built in the State ; but highways existed everywhere, and the statutes of the. State then and ever since required them to be good and sufficient, and until recently made the towns respectively liable for special damages occuiTing to travellers by reason of their insufficiency.
The general rule is, that where a railroad company is authorized to cross highways, it is under a legal duty to construct its road across them in a reasonable manner, with reference to the double use of the crossing for its own purposes, and for trav-ellers upon the highways; that is, the right is subject to the principle of law which is so universal as to have become a maxim, Sic utere tuo ut alienum, non Icedas. Pierce on Railroads, p. 243, and cases there cited.
Section 10 of this charter conferred the right upon the company to build the railroad across highways provided it restored the highway thus intersected as near as practicable to its former state and usefulness, to the acceptance of the selectmen of the town, or, in case of their refusal, to the acceptance of the commissioners provided in the charter. Presumably this highway, before it was interfered with by the building of the crossing, was such as the statute required, viz. : good and sufficient.
Therefore in order to restore the highway at this crossing to its former state and usefulness as near as practicable, it was necessary to make it good and sufficient. Prior to the crossing [138]*138the land was level; hence no railings were required. The highway was left by the company defective, not “ good and sufficient,” not in its former state and usefulness as near as practicable, by not putting railings along the sides of the embankment. Therefore, the company failed in its primary duty under the charter.
Neither the selectmen nor the • commissioners ever accepted the crossing.
It is plain that the company’s duty did not end at the line of its land, if the highway could not be made good and sufficient without extending the fill of the crossing further. A crossing that could not be used in ordinary travel on the highway without the embankment or fill constituting the approaches being extended beyond the railroad land, would not be, without such extension, such a crossing as the law required. With such a defective crossing the highway would not be rested to its former state and usefulness. It would not be good and sufficient/
There is no reason why a town should be put to expense to build the approaches to a crossing. It receives no compensation for the right to cross.
We further think that the word crossing, as applied to the intersection of a common highway and a railroad and as used in the statutes, means the entire structure, including the approaches, although a part of the structure may be outside the lines of the railroads lands or the place where the roads actually cross each other. Such is the holding as to bridges whether over streams or roads. White v. Quincy, 97 Mass. 430; Pierce on Railroads, 250, and cases there cited; and see cases cited in plaintiff’s brief. Such was also the ruling as to a crossing like this in Farley v. C. R. I. & P. R. Co. 42 Iowa, 234.
We therefore hold that it was the company’s duty under the charter to so construct the highway at the crossing that the same should be, as nearly as practicable, as available for the safe use [139]*139of the travelling public, as the highway was before, and if the elevation was such that the approaches on the highway must extend beyond the surveyed limits of the railroad in order that the crossing might be thus available, then the charter contemplated the building of the approaches to meet the necessity ; and if a railing along the sides of the embankment constituting the approaches was required to thus restore said highway, the building of such railing was the duty of the company.
The company not having performed the condition of the charter in respect to restoring this highway to its former state and usefulness cannot claim immunity under it.
The obligation to restore was constant until performed. The negligence in the primary duty was continuing. The liability is like that in the ordinary case where a person puts an obstruction in the highway creating a defect and causing special damage to a traveller. Such person must reimburse the town for a judgment recovered against it for injury resulting from such defect.
The railroad company cannot protect itself against such liability on the ground that the Statute of Limitations would bar an action for the original obstruction. Hamden v. New Haven N. Co. 27 Conn. 158; Burritt v. New Haven, 42 Conn. 174.
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[136]*136The opinion of the court was delivered by
Veazey, J.
This suit was brought to recover of the defendant railroad company the amount of a judgment which had been rendered, against the plaintiff town for injury to a traveller upon a highway by reason of its insufficiency which consisted of an embankment or fill constituting an approach in the highway to a railroad crossing, and having no railing at the sides of the fill to protect the traveller from going off.
The defendant company was cited in to defend the former suit but did not appear. The defendant filed a general demurrer to the writ and declaration which was overruled and the declaration adjudged sufficient, to which the defendant excepted.
The only objection urged under the demurrer is that the defendant company was in possession of this railroad and operating the same as receiver and manager under the order and appointment of the Court of Chancery, and the declaration does not allege that leave was obtained of that court to bring this suit, therefore the County Court had no jurisdiction. The case of Lyman against this same defendant lately decided, 59 Vt. 167, is full authority and controlling against the defendant on this point.
The County Court having adjudged the declaration sufficient, the cause went to trial by jury and further exceptions were taken.
This suit was based upon section 3383 of the Revised Laws, which was first enacted in 1852 and 1855, and after the act of incorporation of the Vermont Central railroad company and after its railroad was built across the highway in question. Contrary to the defendant’s requests the court charged the jury that notwithstanding the charter of the railroad company was prior and was exempt from amendment and repeal the enactment now incorporated in section 3383 R. L. was competent, applicable, and controlling upon the railroad company and did [137]*137not infringe any of the chartered rights of the company, and that it applied to what constituted the railroad crossing as a whole although not wholly within the limits of the railroad land. To this ruling the defendant excepted.
The railroad land at this point was six rods wide. The track was six feet above the grade of the highway before the railroad was built, and in constructing the approaches on the highway to the crossing the embankment or fill extended beyond the limit of the railroad land and the injury to the traveller occurred on this fill about thirty hive feet outside the surveyed limits.
The charter of this railroad company was granted in 1843, before any railroads had been built in the State ; but highways existed everywhere, and the statutes of the. State then and ever since required them to be good and sufficient, and until recently made the towns respectively liable for special damages occuiTing to travellers by reason of their insufficiency.
The general rule is, that where a railroad company is authorized to cross highways, it is under a legal duty to construct its road across them in a reasonable manner, with reference to the double use of the crossing for its own purposes, and for trav-ellers upon the highways; that is, the right is subject to the principle of law which is so universal as to have become a maxim, Sic utere tuo ut alienum, non Icedas. Pierce on Railroads, p. 243, and cases there cited.
Section 10 of this charter conferred the right upon the company to build the railroad across highways provided it restored the highway thus intersected as near as practicable to its former state and usefulness, to the acceptance of the selectmen of the town, or, in case of their refusal, to the acceptance of the commissioners provided in the charter. Presumably this highway, before it was interfered with by the building of the crossing, was such as the statute required, viz. : good and sufficient.
Therefore in order to restore the highway at this crossing to its former state and usefulness as near as practicable, it was necessary to make it good and sufficient. Prior to the crossing [138]*138the land was level; hence no railings were required. The highway was left by the company defective, not “ good and sufficient,” not in its former state and usefulness as near as practicable, by not putting railings along the sides of the embankment. Therefore, the company failed in its primary duty under the charter.
Neither the selectmen nor the • commissioners ever accepted the crossing.
It is plain that the company’s duty did not end at the line of its land, if the highway could not be made good and sufficient without extending the fill of the crossing further. A crossing that could not be used in ordinary travel on the highway without the embankment or fill constituting the approaches being extended beyond the railroad land, would not be, without such extension, such a crossing as the law required. With such a defective crossing the highway would not be rested to its former state and usefulness. It would not be good and sufficient/
There is no reason why a town should be put to expense to build the approaches to a crossing. It receives no compensation for the right to cross.
We further think that the word crossing, as applied to the intersection of a common highway and a railroad and as used in the statutes, means the entire structure, including the approaches, although a part of the structure may be outside the lines of the railroads lands or the place where the roads actually cross each other. Such is the holding as to bridges whether over streams or roads. White v. Quincy, 97 Mass. 430; Pierce on Railroads, 250, and cases there cited; and see cases cited in plaintiff’s brief. Such was also the ruling as to a crossing like this in Farley v. C. R. I. & P. R. Co. 42 Iowa, 234.
We therefore hold that it was the company’s duty under the charter to so construct the highway at the crossing that the same should be, as nearly as practicable, as available for the safe use [139]*139of the travelling public, as the highway was before, and if the elevation was such that the approaches on the highway must extend beyond the surveyed limits of the railroad in order that the crossing might be thus available, then the charter contemplated the building of the approaches to meet the necessity ; and if a railing along the sides of the embankment constituting the approaches was required to thus restore said highway, the building of such railing was the duty of the company.
The company not having performed the condition of the charter in respect to restoring this highway to its former state and usefulness cannot claim immunity under it.
The obligation to restore was constant until performed. The negligence in the primary duty was continuing. The liability is like that in the ordinary case where a person puts an obstruction in the highway creating a defect and causing special damage to a traveller. Such person must reimburse the town for a judgment recovered against it for injury resulting from such defect.
The railroad company cannot protect itself against such liability on the ground that the Statute of Limitations would bar an action for the original obstruction. Hamden v. New Haven N. Co. 27 Conn. 158; Burritt v. New Haven, 42 Conn. 174.
These views render it unnecessary to pass on the construction of the statutes of 1852 and 1855, as embodied in section 3383 R. L.
The liability of the railroad company became established by the facts that the company failed to restore the highway as the charter provided, and that the crossing was never accepted by the selectmen or commissioners, if nothing else appeared to meet this condition.
Therefore, the provision of section 3383 that “ the corporation shall keep in good and sufficient repair,” etc., imposed no additional burden on the defendant, as to this crossing, to that [140]*140which existed under the charter. So that it is immaterial whether this section will bear the construction which the County Court gaye it or not. The right of action existed under it upon the facts in this case in any event. That being so an unsound reason for so holding did not constitute reversible error. "We do not decide whether or not the County Court correctly construed the statute.
The jury returned a general verdict for the plaintiff, but found specially that the plaintiff made all the repairs that were made upon the approaches to the ci’ossing, after 1849, when the railroad was built, but found that neither the Railroad commissioners nor the selectmen accepted the crossing. After verdict the defendant moved that judgment be rendered for the defendant by reason of said first finding in the special verdict.
This motion was based upon the proposition that there was an acceptance by the town by use' and adoption. The doctrine of estoppel does not apply, as it does not appear that the railroad company was misled in reliance upon the action of the town. It does not even appear that the company knew what the town did or that it did anything on that embankment.
The acts of a party cannot operate as an estoppel in favor of a person having no knowledge of them, and consequently in no way misled by them. Bucklin v. Beals, 38 Vt. 653. Estoppel in pais cannot be set up, unless it appears that the action of the party setting it up was influenced by the act, declaration or omission claimed to constitute the estoppel. Warley v. Edson, 35 Vt. 214.
The question is not as argued whether this was a highway by adoption. It was a regularly laid out highway long before the railroad crossed it. The question is whether the town was affected by its action in- keeping the approaches in repair the same as it would have been by an acceptance by the selectmen or railroad commissioners as the charter provided.
If there had been no finding of- non-acceptance by either board, then there would be room for presumption of accept-[141]*141anee, and after sneb lapse of time, perhaps the presumption ought to be conclusive. But there, can be no presumption of a fact one way when the fact is established the other way.
Possibly the town might have waived acceptance by the selectmen and accepted the crossing in some other way, but there is no such finding. All that can be claimed on this point from the special verdict is that it tends to- show a waiver; but this court cannot make that inference, or find any fact.
The slight repairing of the travelled track of the fill, shown by the exceptions, certainly does not necessarily imply a waiver of the duty to put up a railing such as was needed in order to restore the road to its former state and usefulness, or an acceptance of the crossing as a whole without a railing, especially when it appears that neither tribunal designated in the charter ever did accept it.
If the jury had found specially that the railroad company relied upon the action of the town as an acceptance; or had omitted to find that the selectmen and commissioners did not accept; or had found that the town waived acceptance by the selectmen, the defendant’s motion would have stood on stronger-footing.
Upon the verdict as it was, both general and special, we think there was no error in overruling the motion for judgment for the defendant.
Judgment affirmed.