THE STATE vs. THE TOWN OF CAMPTON

It seems to be well settled, that a bridge, though not erected by the public, may still become a public charge in respect to its repairs.

The true test seems to be, that the bridge, if dedicated to the public, ii used by the-.public, and found to be of public utility, should not continue a burthen to the individuals who built it. Q, Inst * 201, 700.—Salk. 369.—2 Bl. Rep. 685. Cam. Di. “ Chemin” B. 1. A different doctrine would damp the enterprize and liberality of individuals; and when a gift of the above character is thus tacitly received and beneficially employed, the receiver ought to take the burthen with the advantage and make all needful repairs. 6 Mod. 307, The Queen vs. The County of Wiltz.—2 Bl. Rep. 685, Inhab. of West Riding of Yorkshire.—5 Burr. 2594, S. C.—2 East 342.

(1) Col. Char, ¿5 <269.

(2)Prov. Laws iio, Ed. 1764.

(3)1 Laws N. H. ws 336.

Though the use and repairs of it by the public may have been under a protest against their liability, and for a shorter period than twenty years, the liability is still fixed, if the bridge be not indicted as a nuisance and be used by the public so long and so much as to evince its usefulness to them. See Auihs. ante.—5 Taunt. 289.—12 East 192.—13 East 220.—2 Chitt. Cr. Lazo 590.

But whether this liability devolves on the county or the town is a different question, and on English authority would seem to incline in favor of the defendants. Most of the cases in the books of indictments for want of repairs in bridges are against counties or individuals. 2 Lev. 111.—3 Salk. 77.—Stiles 109.—Cro. Ch. 365.—1 Hawk Chap. 77, Sec. 2.—2 Chill. Cr. L. 589, and cases there cited. Though towns and parishes are sometimes liable there by long usage. 2 Strange 900, Rex vs. Inhab. of Hamworth. So in Massachusetts, in A. D. 1648, the erection and repairof bridges were imposed upon counties in consequence of the unequal burthen they would devolve on different towns.(1) And d „ by our province laws of the 5th of George 1.(2) the pena]ty for injuries received through insufficiency of bridges was imposed on “ the province or town respectively to “ which of right it belongs to maintain and keep the same in “ repair.”

This furnishes a.strong implication that the duty to repair was here in some cases devolved on counties and in some upon towns; and we all know that province and county roads as well as bridges existed before our present constitution, and were neither of them made a burthen to the towns through which they passed or in which they were built. In this respect they resembled our present turnpike roads and bridges.

But since our statute of Feb. 27th, 1786,(3) the repair of all free roads and bridges seems to belong exclusively to our. town corporations. They alone, and not the* counties, are empowered to raise money “ for making, mending and re- *515*' pairing the several highways and bridges” within their boundaries. They aloue" can appoint surveyors to expend it; and they alone are liable for injuries received through “ insufficiency or want of repairs of any highways or brid- “ ges in any town or parish in this state.”

Under this statute, we are aware of no construction or usage, devolving the repairs of either bridges or roads upon counties; and it would be utterly impossible to define, without an express statute, when a bridge on account of its ex-pence, its length, or its origin, should now be chargeable to the county or a town.

In some towns, intersected by large and numerous streams, the maintenance of bridges is very burthensome; but having been once erected and long used with utility and without toll to the public, the towns cannot be relieved from their repair except by the intervention of the legislature.