Brown v. Towns of Preston & Ledyard

38 Conn. 219 | Conn. | 1871

Carpenter, J.

The constitutional power of the state to authorize the construction of a highway across the cove in question does not seem to be controverted. The learned counsel for the-respondents, in their brief and during the argument, deny that the statute has conferred on the Superior Court any power to lay out a highway across a navigable river, the navigation of which is of such a character that it will require a draw-bridge for its accommodation. That being the only question presented, we shall waive any discussion of the constitutional questions referred to and discussed to some extent by the counsel for the petitioners.

The statute in general terms confers on the Superior Court the power to lay out highways in certain cases, and prescribes the manner in which it shall be done. Stat., p. 498, sec. 29. The statute however is silent in respect to bridges. That tlie power to lay out a highway carries with it the power to require the construction of bridges in the line of the highway, over all streams and rivers not navigable, cannot be denied. It must also be conceded that inlets and rivers navigable to some extent are within the limits of this power. That such has been the practical construction of the statute the records of our courts and reported cases will abundantly show. Wethersfield and Glastonbury v. Humphrey, 20 Conn., 218; Clark v. Saybrook, 21 id., 313; Groton and Ledyard v. Hurlburt, 22 id., 178.

But we are urged to limit this power to those cases in which the navigation is so inconsiderable as not to require the construction of a draw-bridge. We have not discovered any good -reason for such a limitation. It would prove detrimental to the interests of the public along our navigable rivers and sea coast, by checking improvements in the matter of highways, while, on the other hand, the advantages sought to be secured thereby are unimportant and inconsiderable. The extent of navigation on this cove, and the injury thereto by the proposed bridge, are found as follows:

“ The cove is navigable for scows, open-deck vessels, and other small craft of light draft, from its mouth to said village. The cove is so navigated, more especially by the people of said village, for the purposes of transporting the coal which is there used for factory purposes, and to some extent by the inhabitants for fuel, also for bringing up rock-weed used by them for agricultural purposes. The cove is also used for conveying lumber from said village to places on the Thames river and the village of Mystic. And such navigation is useful and valuable to the inhabitants of said village and vicinity. And a bridge across the cove at the point indicated in the report would be an obstruction to such navigation, unless such bridge should be constructed with a suitable draw, so as to permit vessels of tlie character described to pass.”

From . this it is apparent that if the bridge is constructed with a suitable draw, the injury to navigation will bo very slight. Whatever the inconvenience may be, it was doubtless fully considered by the committee in determining the common convenience and necessity of the proposed highway. It was proper that it should be so considered. Upon such consideration it is found that the public wants require the construction of the highway, including the bridge. The slight inconvenience to which those interested in the navigation of this cove will be subjected, should be endured for the sake of the greater good accruing to the public at large.

The most serious objection to construing this statute as conferring the powers contended for, is found in the fact that the statute makes no provision for the construction of a drawbridge. Although the statute contains no express authority, yet we think it may be clearly implied in cases where public convenience and necessity demand a highway across a navigable stream ■ of water. Towns in the construction of highways exercise the right of eminent domain, which right is delegated to them by the legislature'. The obstruction of navigation by means of a draw-bridge is an exercise of this same right. The power implied therefore is of the same general nature, and is necessary in order to secure fully the main object contemplated by the statute.

It is further claimed that this power has rarely, if ever, been exercised. Whether this claim is well founded in fact or not we are not prepared to say. In two of the cases referred to, Wethersfield v. Humphrey, and Groton and Ledyard v. Hurlburt, the court expressly alludes to draw-bridges as a means of preserving the rights of parties interested in navigation. In the- former case, the power to require the road to be so constructed as to prove no obstruction is spoken of as being in the courts. We entertain no doubt that in some way the rights of all parties interested may be preserved. The mode of doing it is not the question now before us.

We find no error in the record.

In this opinion the other judges concurred; except Foster, J., who dissented.