Cullen v. New York, New Haven & Hartford Railroad
33 A. 910
Conn.
1895
Check Treatment
Baldwin, J.

Two claims are made in support of these appeals; first that, under the order of the railroad commissioners, only so much of Ferry Path was or could be closed as is included in the location of the railroad at the point of crossing; and, second, that, however this may be, the order was made in the exercise of the police power of the State, to remove a source of public danger, and therefore any resulting damage to private individuals is damnum absque injuriad

The application to the commissioners was founded on chapter 36 of the Public Acts of 1876, as amended by chapter 8 of the Public Acts of 1877 (General Statutes, §§ 3489, 3490, 3491). These statutes provided that the directors of any railroad company whose road crosses or is crossed by a highway, might bring a petition to the railroad commissioners, “ therein alleging that public safety requires an alteration in such crossing, its approaches, the method of crossing, *222the location of the highway or railroad, or the removal of obstructions to the sight at such crossing, and praying that the same be ordered.” Notice was then to be given to the owners of the land adjoining such crossing, and after due hearing, the commissioners were to “ determine what alterations or removals shall be made, by whom done, and at whose expense.” In case the company could not “ agree with the owner of the land or other property to be removed or taken under the said decision of the railroad commissioners, the damages ” were to be “ assessed in the same manner as is provided in case of land taken by railroad companies. The expense of such assessment to be paid in the same manner as the expense of the alterations.” An appeal to the Superior Court, to be taken within twenty days, was given to any person aggrieved by the decision.

The charter of the city of New Haven, which was enacted in 1881, provides (§ 31) that the Court of Common Council “shall have sole and exclusive authority and control over all streets and highways, and over all parts of streets and highways now or hereafter existing within the limits of said' city, and shall have sole and exclusive power to lay out, make, or order new highways and streets within the limits of said city, and to alter, repair, and discontinue all highways and streets now or hereafter existing within the limits of said city.”

This section must be read in connection with the statutes existing at the date of its enactment which relate to the location of railroads and the powers of the railroad commissioners. It has always been the policy of the State to allow railroad companies, with the approval of the railroad commissioners, to lay out and construct their roads in the best possible line, and if necessary for this purpose to change the course of existing highways. General Statutes, §§ 3476, 3480, 3488, 3461. Such a change may result in the discontinuance of a part of a highway and the substitution of a new section of road, or the diversion of travel upon another existing highway. Waterbury v. Hartford, Providence & Fishkill *223R. R. Co., 27 Conn., 146, 156; Suffield v. New Haven & Northampton Co., 53 id., 367.

These provisions in the general laws control, so far as they apply, the effect of § 31 of the city charter. State ex rel. New Haven Derby Railroad Co. v. Railroad Commissioners, 56 Conn., 308. The same reasons which induced the legislature to put in the hands of railroad companies the power, with the approval of the railroad commissioners, to alter or discontinue highways, in order to secure the best location for a railroad, apply also, and with equal force to the case of an alteration or discontinuance of a highway, in order to promote the safe operation of a railroad. The Act of 1876 appears to us to have been framed with this view. A steam railroad is a road in the safe maintenance and operation of which the whole State is directly interested. It is therefore put under the supexwisioxx of a board of State officers, with extensive powers.' Their authority sometimes trenches upon what would otherwise be within the exclusive jurisdiction of some particular municipality, and wherever it does, the latter must give way, for so only could any general policy of administration be eárried out. The proper regulation of railroads, in their course through different towns, is a matter which is necessarily of more than local concern. As highways must give place to railroads where both cannot occupy the same grouixd, so municipal control and management of highways must yield, at times, to State control and management, when safety of railway operation is ixx question.

It would deprive the statute for the removal of grade crossings, which is under consideration, of much of its efficiency, were it to be construed as axxthorizing the discontinuance, under an order of the railroad commissioners, of only so much of a highway as lies withixx the limits of the railroad location. To accomplish the best results it is plainly xxecessary that they should have power to discontinue also so much of the highway approaching the crossing on each side, as otherwise would be left still in a condition of danger, or become no longer of public necessity and convenience.

That portion of Ferry Path between Alton and Main *224streets is about five hundred and forty feet in length. The railroad crossing was about one hundred and fifty feet from Main street, and forty feet wide. The discontinuance of the street at the point of crossing only, would have left a short eul de sac on each side, diagonally bounding house lots, most of which ran through to other streets which were thoroughfares. We are of opinion that the discontinuance of these approaches, as ordered by the commissioners, was a matter properly within their jurisdiction, and fully justified under the terms of the application.

The statute provided that the commissioners should determine what “ alterations or removals ” should be made, and “at whose expense.” If the party by whom the changes were to be made could not agree with the owners “ of the land or other property to be removed or taken,” the damages were to be “ assessed in the same manner as is provided in case of land taken by railroad companies; ” the expense of such assessment to be paid in the same manner as the expense of the alterations. The general law as to taking land by railroad companies (General Statutes, § 8464) provides that if they cannot agree with the parties interested, they may apply to any judge of the Superior Court for the appointment of appraisers, whose duty it shall be “to estimate all damages that may arise to any person from the taking and occupation of such real estate for railroad purposes.”

The reference in the statute to removals of property is obviously confined to removals of obstructions to the sight, which make the use of the crossing dangerous to those using the highway or the railroad. But the provision for the payment of the “ expense of the alterations,” and the assessment of damages in favor of the owners of land or other property taken, appear to us adequate to support the plaintiffs' actions.

The result of the order was to leave the house lot of the plaintiff Cullen, which adjoined the crossing, without any mode of ingress or egress, except by the permission of his neighbors, or by trespassing on the railroad location. His property was thereby taken in the strictest sense, and the railroad company, although five years elapsed before the in*225stitution of the action, took no proceedings for his relief under General Statutes, § 3462.

The house lot of the plaintiff Tallmadge, was more than a hundred feet from the crossing and was bounded by Monroe street, in the rear. Tt was improved by a house fronting on and near to Ferry Path, the rear of which was more than a hundred feet from the other street. He was one of those named in the original application of the railroad company, with reference to this crossing, as parties to be notified, and we think he may properly be regarded as one of “ the owners of the land adjoining such crossing,” within the spirit and intent of the statute, which obviously requires notice to all parties adversely interested. Town of Westbrook's Appeal, 57 Conn., 95, 102. All owners of land abutting on that part of the street discontinued, and so presumptively owners of the fee in half of it, came within that description, since the use and enjoyment of their property was necessarily and directly affected by the change. As the word “ bridge ” may include not only the principal structure but the highway approaches on each side, so the words “land adjoining the crossing,” as used in the Act of 1876, in order to do justice to all concerned, must be taken to cover land adjoining the approaches to the crossing, which are or may be altered by the order of the railroad commissioners. Burritt v. New Haven, 42 Conn., 200; New Haven and Fairfield Counties v. Milford, 64 id., 568. The damages done to the owner of any such land, if his “ lamí or other property ” is taken, unless agreed upon with him, are to be assessed by appraisers, who are to include in their estimate (General Statutes, § 3464) all damages that may arise to him from its taking or occupation. In Bradley v. New York & New Haven Railroad Co., 21 Conn., 294, 309, it was held that to raise the highway approaches to a railroad bridge in such a manner as to obstruct the access to a store and lot abutting on the street, was not a taking of the land, within the meaning of the Constitution of this State, but was an act for which the railroad company was liable, under a provision in its charter, requiring it to pay all damages that might arise to any person by its taking or injuring their real estate.

*226In the case at bar, the statute provides for all damages arising from the taking of the land, “ or other property ” of the plaintiff. The owner of land abutting on a highway has an interest in the highway of a special and peculiar nature, which may well be considered as a part of his property. Hubbard v. Deming, 21 Conn., 356, 360; Wheeler v. Bedford, 54 id., 244; Frink v. Lawrence, 20 id., 117. If it is his only means of communication with the rest of the world, its maintenance is essential to the enjoyment of his land. If it is simply one of several means of communication, its discontinuance, while it would not destroy, must of necessity depreciate his estate. To take away the street on which a man’s house fronts, is to take away a considerable part of its value. For such an injury to his property we think the statutes under consideration afford a remedy, even without the aid of the charter of the Shore Line Railroad Company, which makes it liable to pay all damages that may arise to any person from its entry upon or use of any franchises, lands, or real estate in the course of the construction or operation of its road. 4 Priv. Laws, 469. The resulting damage constitutes a legitimate part of the “ expense ” of the improvement, as to which provision is made in General Statutes, § 3489.

Had that part of Ferry Path which was discontinued by the order of the railroad commissioners been discontinued by the city of New Haven, the plaintiffs would have been entitled to payment of just damages to be assessed by the board of compensation under § 47 of the city charter. The city was a party to the proceedings before the commissioners, and in their apportionment of the expense that would be occasioned by their order, was subjected to the payment of half. This was a matter within their jurisdiction, and as no appeal was taken by the city, their decision was final. Town of Fairfield's Appeal, 57 Conn., 167.

Neither the railroad company nor the city having taken any steps to procure an assessment of the plaintiffs’ damages, they had a right to sue for them at law. Holley v. Torrington, 63 Conn., 426. They were also entitled to rely on the order of the railroad commissioners as establishing the liabil*227ity of both defendants, and the obligation of each to pay half of the damages which might be assessed. No exception has been taken by either defendant to the rendition of a joint judgment.

The demurrer of the railroad company was properly overruled. So far as the city is concerned, as it raised no points of law in the court below, it can raise none here, which are not necessarily presented on the face of the judgment. But one such is suggested, — that the award of damages is excessive, because based upon a legal closing of Ferry Path for the entire distance between Main and Alton streets. That this was its basis is true; but as we are of opinion that all that part of Ferry Path was legally closed, it constitutes no ground of appeal for either defendant.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.