21 Conn. 313 | Conn. | 1851
1. The plaintiff in error insisted, that, as the 12th section of the act relating to highways and bridges, (Stat. 340, 1. ed. 1838.) under which the proceedings of the
2. We come then to the remaining point arising on this writ of error, which is, whether, by the provisions of the statute under which the road in question was laid out, the damages sustained by the plaintiff in error, in consequence of laying it out, were of such a character that he was entitled to have them assessed in his favour by the jury. Under the rule of this and the superior court, respecting assignments of errors, the question is not here presented, whether, if the plaintiff in error was entitled, under the circumstances of this case, to compensation, under the provisions of the constitution respecting private property taken for public use,
We are thus brought to determine the construction of that, statute, with reference to the claim of the plaintiff in error, that he was entitled to have damages assessed in his favour, on the laying-out of the highway. It is conceded, that he was not an owner of any land through which it was laid out, and the only damage which it appears that he could sustain, would be in consequence of his being deprived, to a certain extent, of the use of the creek, for the transportation of his stone from his quarry, and the produce of his land, by the obstruction caused by the bridge where the road crosses it.
The plaintiff in error, in support of his claim that individuals are entitled, not only to direct and immediate, but also to remote and consequential damages, sustained by them, by the laying-out of a highway, of which latter character are the damages in the present case, relies upon the generality of the expressions used in the provisions of the statute in relation to the assessment of damages, in connexion with the judicial construction which he claims has been put upon similar provisions on the same subject contained in various special acts of incorporation, granted for the purpose of making turnpike roads, rail-roads, canals, and other similar works. The 12th section of that act, (Stat. 340, 1. ed. 1837.) (as modified by the 12th section of the act of 1841, Acts of 1841, pp. 15, 16.) provided, that when any new highway, within a town, where the select-men of that town neglect or refuse to lay out the same, shall be wanting, any person or persons may apply to the county court for that purpose; that such application shall be heard and decided, by the county commissioners; and that they, after taking the oath and giving the notice therein prescribed, “if they shall be of opinion that such highway or road will be of common convenience and necessity, shall proceed to survey and lay out the same, and assess the damage which will thereby accrue to individualsand thereupon they are to make their report in writing of their doings, and return the same to the county court; and that, “if any person shall
What, then, is the rule of restriction, and what particular species of damage does the statute embrace? We think, that an answer to this question is not difficult. It is the direct and immediate damage resulting from the laying-out of the highway. This rule excludes all indirect and remote, or what is usually termed mere consequential damage, and also any direct or immediate damage occasioned by any other cause than such laying-out. It was, in our opinion, the intention of the legislature, in this statute, to provide remuneration to individuals, only in cases where, in consequence of the laying-out of a public highway, they would, if no such remuneration were provided, sustain what in law is denominated an injury, which consists of a violation of one’s rights; which would not be the case in the several instances which have been just mentioned, and others of a
The power of providing highways for the use of the public, is a branch of what is termed the right of eminent domain, which resides in the sovereign authority of a state, (which is here the people, who are the source of all political power,) and is exercised by them, through the instrumentality of the legislature, to whom, by the constitution, they have delegated it, and who must exercise it themselves, or through the agency of subordinate instrumentalities. The legislature has entrusted this power, so far as it relates to ordinary highways, to the, select-men of towns, and to the county courts and county commissioners, respectively, and prescribed the mode in which it shall be exercised, by the statute which we are now considering. These bodies, therefore, in performing their duties on this subject, are only the agents of and represent the state, and exercise a portion of its right of eminent domain. This right existing in the state, or sovereign power, being unlimited in its extent, that portion of it, which is thus vested in the legislature, would also be unlimited, within its proper scope, and therefore might be exercised by the latter, and consequently, by the subordinate bodies to whom they had delegated it, in the establishment of a highway, without providing remuneration for any person sustaining damage of whatever kind thereby, were it not for the restriction imposed by the sovereign power on the legislature, by the constitution, which declares, that “the property of no person shall be taken for public use, without just compensa
So far as the construction of the provisions, relied on in the act before us, is aided by usage, a similar provision has
We do not think that the claim of the plaintiff in error is strengthened by those cases which he has cited, where similar questions have arisen between individuals and canal, turnpike and rail-road companies. The question, in those cases, turned upon the construction of the particular provision of the act by which those companies were incorporated, and only involved the extent of the power granted to, and of the duty imposed on, them. They were controversies between individuals and those companies, claiming under special powers granted by their charters, and not, as in this case, between an individual and the state, whose powers, with the exceptions which have been mentioned, are unlimited. The phraseology, moreover, in those charters, is peculiar on this subject, and differs essentially from that contained in our general statutes providing for the laying-out of highways, In addition to this, the rules for construing such private grants and general laws, are widely different, as we had occasion to shew, in the recent case of Bradley v. The New-York and New-Haven Rail-road Company, ante, p. 294.
If, however, the plaintiff in error were correct in his claim, that, by the true construction of the statute, under which the damages were assessed, by the jury, in this case, incidental or consequential damages merely are a proper subject of compensation, we are of opinion, that it would not embrace the kind of damage, which it appears from the finding of the county court, on the remonstrance of the petitioners, that he had sustained. It is found, that he had no right to the use of the creek crossed by the new highway, except in common with the public generally; and it does not appear, that he would sustain any damage, except that, in consequence of the bridge across the creek, he would be deprived, to a certain extent, of the use of the creek for the transportation of stone from his quarry, and the produce of his land. In other words, he would, in consequence of the establishment of the contemplated highway, be incommoded only, in common with the public generally, in the use of another highway, which consisted of the creek, but would suffer no damage, which
But we are, in the last place, of the opinion, that by the terms and true construction of that statute, the assessment of damages is to be confined to the owners of land through which the highway is laid out. The eleventh section provides, that the select-men of the respective towns, or the major part of them, may lay out such public highways as they shall judge needful, within their respective towns, first giving the notice therein prescribed, “to the owners of land through which the same are to be laid out, to be present, if they see cause, at the laying-out of such ways.” It then provides by whom “the damage done to such person or persons, by laying out the same,” shall be paid; and that, “if the select-men and persons interested cannot agree as to the damages done, by the laying-out of such way, the select-men shall apply to a justice of the peace, who shall appoint three judicious, disinterested freeholders, who, being sworn for that purpose, shall estimate and assess to each person injured the damages sustained by him, in laying out said way.” The remainder of the section merely prescribes the subsequent steps necessary to be taken for the establishment of the highway. Then follow the provisions of the twelfth section, which have been before recited, so far as they apply to this question. In regard to the meaning of these provisions, we have no doubt, in the first place, that the provision in the
These enactments are in pari materia, or, more correctly speaking, only parts of the same act; and this is the only construction which will make them harmonize with each other, or carry into effect the manifest object of the legislature in passing them. The jurisdiction given to the county court, the commissioners, and the jury, where select-men neglect or refuse to lay out a road, which is the case now before us, is merely appellate, in its character. The design of the twelfth section of the statute, was only to furnish a remedy, by a review before a higher tribunal, where select-men neglect or refuse to perform their duty. It would therefore be most unreasonable to suppose, that the legislature intended to establish a different principle in the two tribunals, by which damages occasioned by the laying-out of a road, should be assessed. Although, therefore, the phraseology of the act is somewhat general and loose on this subject, we cannot adopt the construction insisted upon, by the plaintiff in error.
Judgment affirmed.
Before the adoption of our state constitution, or even that of the United States, we had a statute, providing, that the damages sustained by any persons, by the laying-out of a public highway, should be paid by the town in whose bounds it should be laid out. Stat. 96, ed. 1784. R.