Greene v. Town of East Haddam

51 Conn. 547 | Conn. | 1884

Park, C. J.

Tins is an application for the laying out of a highway. A committee appointed by the court reported that they found the way to be of public convenience and necessity and that they had surveyed and laid it out. The town of East Haddam, the defendant in the case, and Henry F. Gardner, a land owner on the proposed route, severally remonstrated against the acceptance of the report. The court found the facts on the remonstrances, overruled them, and passed a decree establishing the highway. The remonstrants severally appealed to this court. We will consider first the reasons of appeal assigned by the town.

The first reason assigned is, that “ the committee, after the trial before them was concluded, and in the absence and without the knowledge of the appellant, changed the route of the road surveyed by the plaintiff’s engineer and prayed for in the complaint, and to which the evidence and arguments were directed during the trial, so as to include a tract of land used for the purpose of a wharf, which was not considered during the trial, and which alteration was material and such as to entitle the appellant to a hearing upon it before the committee.”

The second reason assigned may properly be considered with the first, and is as follows : — •“ that the committee took a large triangular tract of land belonging to the estate of W. H. Goodspeed, for the purpose of creating two approaches or routes to and from the southern terminus of the proposed road, and which were not asked for in the application nor considered on the trial.”

The facts found by the court upon these two points are as follows:

The highway prayed for, and as laid out by the committee, is about two and three-quarters miles in length. The termini as laid out and located by the committee are the same which are particularly described in the application. About six rods from its southern terminus the proposed highway crosses at substantially right angles a public way known as Ferry Path, which runs from the main or Johnsonville road to the Connecticut River, and is about a hundred and forty feet in length. It has been for the last fifteen or twenty years practically disused for public travel, the ferry used in connection with it having been abandoned and its charter surrendered. To enable the town to construct the road-bed of the proposed highway so as to accommodate travel both from the north and south on the main road, the committee laid out its southern terminus in the shape of a triangle. The west line of the highway for about a hundred and eighty feet, forms the base of the triangle ; the west line of the main road for about a hundred and forty-five feet, and the north line of the Ferry Path for about a hundred and forty feet, forming respectively its other sides. The estate of William H. Goodspeed owns all the land embraced by the triangle which is not already appropriated to public use, and this land extends westerly to the river, where a wharf has existed for many years. A small part of the land so devoted to wharf purposes lies within the external lines of the triangle. Upon the trial before the committee the petitioner presented a map prepared at his instance by one Augur, a surveyor and civil engineer, showing a surveyed route between the termini, and asked the committee to adopt it as the lay-out of the highway. Augur had been employed by the plaintiff as his engineer, and testified for him on the trial of the case before the committee. This mapped route covered all the private land .embraced by the triangle, except a small triangular piece enclosed by the west line of the proposed highway, the south line of the Ferry Path, and the west line of the mapped route. The route as shown by the map passed through the house lot of Christopher Tyler, and necessitated, if adopted, the demolition of a green house, and would have occasioned large land damages. It then continued in a straight line across the Ferry Path to the southern terminus fixed in the application. Tyler’s house lot is bounded southerly by the Ferry Path. Mr. Chadwick, one of the counsel for the defendants and remonstrants before the committee, was also the counsel for tire estate of Goodspeed .and for Tyler. The counsel for the defendants and Mr. Chadwick objected to the laying out of the highway in any place, but particularly insisted that if it was to be laid out at all, there should be a deflection westerly from the mapped route, so as to avoid cutting Tyler’s house lot and destruction of his green house. This deflection was urged because it would largely diminish the land damages, and be in other respects less expensive. It commenced at a point on the mapped route about fifteen rods from its southern terminus and continued to the Ferry Path. The deflected route was adopted by the committee, and is the lay-out of the highway from the point of divergence to the Ferry Path. The mapped route was otherwise adopted. At the point of greatest divergence the west line of the mapped route and the east line of the layout are no more than eight feet apart, and the lines of the routes are separated for about one hundred feet, running to an acute angle at both ends. The question whether the deflected route should be adopted as the lay-out was important and prominent in the trial, and occupied the attention of the parties and of the committee for several days. This route required the lay-out to cross the Ferry Path. William R. Goodspeed, the administrator of Goodspeed’s estate, was present at the hearing personally, a large part of the time,, and by his counsel, Mr. Chadwick, all of the time. He knew that the deflected route was asked for, and was acquainted generally with the progress of the trial, and was heard upon the question of damages to the property, but his attention was not specifically drawn to the fact that the lines of the actual lay-out took more of his land than this mapped route. His attention was drawn particularly to the mapped route, and he did not introduce any evidence having particular reference to the land not covered by that route, nor make any special claim in reference thereto, but he had full opportunity to do so. Evidence of the land damages and cost of making the road occasioned ‘by the deflected route from its divergence to the southern terminus was largely gone into before the committee, and one of the items of cost of making the road upon that route was the probable necessity of raising the roadbed from three to six feet, so as to place it above ordinary high water mark. The cost of so raising the road-bed will be a substantial sum, but it did not appear what it would be. This item, with other items of expense, was fully heard and considered by the com.mittee, and they have awarded Goodspeed’s estate damages for all the land actually taken by the lay-out. The damage to the property of the estate by the mapped route would have been nominal. By the actual lay-out the damages do not exceed one hundred dollars. The wharf has been practically disused for the last fifteen years, is out of repair, and with no water approach to it at ordinary low water, and is not of great value. No probable construction of the roadbed of the new highway as laid out will affect injuriously the value of Goodspeed’s property beyond the amount assessed therefor. During the hearing, Augur, the plaintiff’s engineer, as a witness, suggested two possible methods of constructing the road-bed of the proposed and mapped route to reach the main road, one by a single and one by a reverse curve. There was no plan of either of the curves before the committee, and none showing the precise location of the lines of the lay-out. The committee requested the defendants to furnish a map showing the deflected route to the southern terminus, and supposed that they would comply with the request, but it was not done. The question as to whether the deflected route should be taken for the lay-out, was not determined until after the final arguments, and no hearing was had after it was decided to follow that route. The highway as laid out by the committee is the same highway asked for in the petition, if the committee had power to adopt the deflected route.

It is nearly impossible without a map to understand precisely what was done by the committee' in the matters here complained of, but it appears from the map used on the argument that the occupancy of the Goodspeed land and the widening of the road at its southern terminus grew out of the deflection of the line of the road at the house of Mr. Tyler, which is but a few rods from the terminus. So far as that deflection is concerned it would be a sufficient answer to the objection made to it that it was particularly urged by the counsel for the town, in view of the injury to the premises of Mr. Tyler which a laying out of the road upon the line as originally surveyed would have caused, and the consequently increased damages which the town would have been compelled to pay. But it is not necessary to resort to this mode of meeting the objection. If the defendant town was not estopped in the matter, the objection would still be wholly untenable. It has been settled by repeated decisions of this court that slight deviations from the route prayed for in the application are not important, so long as the termini established are substantially the-same as those prayed for. In Clark v. Town of Middlebury, 47 Conn., 331, the court say (p. 336:) “It appears, that, the petitioners’ route as surveyed contains in all ten courses,, with an aggregate of two hundred and fifty-seven rods and thirteen links of road, while the road as laid out contains' fourteen courses, with an aggregate distance of two hundred and sixty-eight rods and sixteen links. The lines of the two surveys are in some instances nearly identical, then they cross each other at right angles, and at one point of farthest deviation the two lines are distant from each other about twelve rods. The termini are substantially the same. We. think the variation referred to, especially in a country road, could not possibly affect the question of common convenience and necessity, and that the location of the highway as laid out by the committee was substantially the same as the petition called for.” Here the deviation was much less. It is found that the west line of the mapped route and the east line of the surveyed route, at the greatest point of divergence, were but eight feet apart, making the centre line of the former probably not over five or six rods at the utmost from the centre line of the latter, even where the road was laid out of the great width complained of. We think such a divergence fell within the rightful exercise of judgment on the part of the committee. An application specifying a surveyed route from one terminus of the proposed road to the other, must be taken to mean that route substantially, and the committee are not be limited in the exercise of their judgment in the matter by the fact that the application has not in terms asked for a route substantially agreeing with the line described.

The statement in the reasons of appeal that the deflection was made and the Goodspeed land taken after the trial was concluded and without the knowledge of the’appellant, and without being considered on the hearing, is fully negatived by the finding.

The objection made with regard to the widening of the road at the southern terminus, by taking in the Goodspeed land, presents a question which this court has not had occasion heretofore to consider. It is found that this terminus as established by the committee is the same as that prayed for in the application. But it appears that the road at its junction with the main road which runs in a southerly direction through the villages on the bank of the Connecticut River, was widened so as to make it more convenient to enter upon or to leave for those coming on the main road from the north, and those turning from this road upon the main road and going north. The mouth of the new road. is made with two diverging tracks, leaving a small triangular space between them, making the road at this point of junction one hundred and forty-five feet wide. The ease is likened by the counsel for the town to the laying out of a cross road to accommodate travel coming to and going from the road laid out.* But in that case the cross road, however convenient or even necessary, would be an independent road, and of course could not be laid out unless specifically prayed for, either by itself or in the application for the principal'road. Here the widening of the road at its junction with an existing road is simply a laying out of the new road. The only question is whether the committee had the power to lay it out as it has done. Suppose a road to be laid out sixty feet wide, and to strike another road at right angles. Must the mouth of the road be exactly sixty feet wide, so that all the travel shall túrn from one road into the other at a right angle, or may the committee for the accommodation of the public, perhaps for its great accommodation, cut off the corners and allow a considerable curve on each side for the track from the new road to the old one? We see no reason why we may not do it, if they are satisfied that the public convenience requires it, and that although the application may have said nothing about the matter beyond-describing the terminus as a certain point. Still more would such a course seem proper where, as here, the new road strikes the old one at an acute angle. This road was laid out sixty feet wide. Of course at its mouth the distance from one side to the other would. be much greater and nearly or quite one hundred feet. On one side there is a sharp angle to be turned by all persons going from one road to the other and turning on that side. May the committee in every such case cut off a hundred feet perhaps of that angle so as to make a considerable saving in distance and in convenience of turning to those who pass from one road to the other on the side where that angle lies? We can see no good reason why they may not. And this too although it may leave between the two diverging tracks of the new road a small triangle of land not used. The road is laid out for the public convenience, and this is one of the details of that convenience that the committee have a full right to exercise their judgment upon. There may be circumstances where it would be a serious omission on their part not to do it. A considerable ascent might thus be avoided where the junction of a new road with an old one is upon or near the top of a hill.

The next reason assigned in the appeal of the town, is “ that after the final adjournment the committee employed E. P. Augur, the plaintiff’s engineer, against the objection of the appellant, who was in attendance and assisting them three days in laying out the road asked for and in making the change of route referred to, all of which was in the absence and without the knowledge of the appellant.”

The facts found by the court upon this point are as follows : — At the close of the hearing the committee inquired whether, in the event that they should decide to lay out the road, the parties desired to make any suggestion as to the engineer they should employ. The defendants’ counsel replied that they objected to the employment of Augur. After the committee had decided to lay out the highway, they made inquiries for a surveyor, and ascertained that Mr. Chandler, the defendants’ engineer, had returned to his home in Norwich, that Augur was still in town, and that no other surveyor could be had without considerable delay and some expense. They thereupon sent for Augur, told him they had decided to lay out the road, and desired him to’make such measurements and computations and drive such stakes and fix such monuments as they should direct him to do; one of the committee saying to him that they did not want his assistance by way of advice or suggestion, but only to do the things directed. Augur consented to so act for the committee, and was with them the greater part of three days thereafter, during which they were employed in defining the precise location of the lines of the lay-out and securing data for their report. The parties were not present during any part of these three days.

The matter alleged is that Augur was emplojmd by the committee against the appellant’s objection, and assisted them for three days in laying out the road and in making the change of route referred to. If by this allegation is meant that Augur assisted them with advice as to the laying out of the road and as to making the change of route, the committee may have been guilty of serious misconduct in employing him, but the finding of the court shows that he was employed after the committee had decided to lay out the road, and for the mere mechanical service of measuring courses and distances and putting down stakes under their direction. For such a purpose it was a matter of very little importance that he had been a surveyor for the plaintiff, or that the appellant objected to him. As a matter of expediency and to prevent all possible-suspicion or cavil, it might be better that the surveyor emplo3'-ed for such purpose should be one that neither party-objects to, but a good reason is shown here why Augur was employed, and there was no impropriety in his employment by the committee in the circumstances. The finding of the court really negatives all that is important in the reason of appeal assigned. ,

The fourth reason of appeal assigned by the town is, that during and after the trial the committee were subjected to improper influences, which tended to warp their judgment and prejudice them in favor of the proposed road.

The facts found on this point are as follows: — The committee during the greater part of the ttifcl boarded at the Champion House, a hotel situated near the southern terminus of the proposed highway*. The proprietor of the hotel used in connection with it a small steamboat or yacht, which the committee understood to be kept for the common convenience of all his guests. The place of the hearing was at a lower village on the river, about three quarters of a mile from the hotel, and on some occasions the committee were carried to and from the place of trial on the steamboat, and sometimes went back and forth on foot or by the hotel wagon. On some occasions some of the petitioner’s counsel or witnesses were also upon the steamboat, and sat at the same table with the committee at the hotel while dining. On two occasions the hotel proprietor took the committee, with other persons, upon the steamboat for short pleasure sails. One of such pleasure sails.was through Salmon Cove and up Salmon River. At this time Augur was present. While on this sail the boat ran aground at a point just above a wharf. This sail was made during a freshet, and the boat was run without reference -to the channel of the stream and across the meadows. No* allusion was made during this trip to any matter connected with this litigation. This sail was had before the defendants had made the claim now to be stated. The defendants subsequently on the trial claimed that common convenience and necessity did not require the proposed road, and one of the reasons given by them was that the business people of Moodus, at the northern terminus of the road, could be well accommodated by transporting their freights over a water route up Salmon Cove to a wharf and road already built leading to Moodus; the wharf being the one above referred to. The plaintiff claimed, in reply, that there Avas difficulty in navigating this cove with vessels of considerable size at an ordinary stage of the water. The defendants’ counsel now claim that the pleasure sail and grounding of the boat Avas a preconcerted plan to influence the committee upon this question; but this claim as matter of fact Avas not sustained. On one occasion during the trial, in presence of Mr. Wood-ruff and Mr. Newton, of the committee, others being present, and the remark being heard by Mr. Newton, the Avife of the proprietor of the hotel said she did not knoAV anything about the reasons for or against the road, but that she Avas sure that those who wanted the road had good reasons, and those'Avho opposed it had bad reasons. This remark Avas not addressed to any member of the committee. When it Avas made her husband said to her that it Avas not proper for her to remark about the road in the presence of members of the committee, and she replied that she must talk or die. Mr. NeAvton testified that he understood the Avhole conversation to be in jest, and not intended for serious consideration. After the committee had decided to make the layout, the same lady said in the hearing of Mr. Newton that she should be mad if they did not get the road, but should think more of the committee if they decided as they thought right. During the trial the members of the committee on tAvo or three occasions accepted social invitations to private houses, and on one occasion at the house of D. B. Warner during a game of Avhist, in Avhich one of them participated, his partner, a young lady, said as they Avon a game, “ I cannot but think we are playing for the road.” Her sister immediately said to her, “You know nothing was to be said about the road.” It did not appear that the other members heard the remark or knew of its being made. Mr. Warner was a witness for the petitioner, and' owned some property near the southern terminus of the road, and favored the proposed lay-out. Ho member of the committee did or said anything to invite or encourage any of these remarks, made no reply to them, and did not permit or allow them to be made. There was no misconduct or irregularity on the part of the committee, or any member of it, unless the law infers misconduct or irregularity from the facts stated. All allegations of the remonstrance not herein found true, and those not consistent with the facts herein found, are not proved and not true.

It is contended by the appellant that these facts show “ irregular and improper conduct ” on the part of the committee, which is made by the statute a sufficient ground for setting aside the report. Gen. Statutes, p. 238, sec. 39.

In Beardsley v. Town of Washington, 39 Conn., 265, it is said that “ the trial of applications of this character can not be guarded with the same strictness as those which are had in court, but every precaution which can reasonably be taken to guard against even the possibility of improper influences and to ensure a perfectly fair trial, should be observed. Prima facie the entertainment of triers by one of the parties, for all or any part of the time occupied by the trial, is irregular and improper; for though all may say that no undue influence has been observed or attempted, there may be an influence felt and operative which is not seen or heard or even intended.” In that case the committee had been entertained during the whole of the trial by one of the petitioners, but it appeared that there was no inn in the neighborhood, and that the petitioners and the selectmen of the respondent town had agreed that the committee should be entertained at that place, with the counsel on both sides; and the court held that this was a sufficient explanation and justification of the act. The court also held that it did not affect the case that the entertainment was a handsome and liberal one and without cost to either party. In the present case no question is made as to the propriety of the committee’s staying at the hotel where they did, although it was near the southern terminus of the proposed road and the proprietor was interested in its being laid out. The objection is to their having received attentions from the landlord which it is claimed tended to bias their' minds, as well as also on one occasion an invitation, which they accepted, to a social gathering at the house of Mr. Warner, who was also interested in having the road laid out. The acceptance of such special attentions we regard as objectionable, even where they produce no effect whatever upon the minds of any of the committee, as tending to create a distrust of the committee in the minds of the other party, and a suspicion of unfairness in the decision of the Committee where finally adverse to them. It is far better therefore that no room be given for suspicion or cavil. It is however to be presumed that such a committee is above the reach of such petty influences. It is to be considered that, unlike jurymen, who are drawn by lot from a large collection of names often selected with little intelligent care, they are specially appointed by the court, generally upon the agreement of the opposing parties, and if not, then upon careful consideration, and that they are selected for their fitness for such a duty. It may fairly be assumed therefore that they are less responsive to misleading-influences, especially such petty ones as in this case, and of sounder and more steadfast judgment, than ordinary jurymen. In this case the court has found that there was no improper conduct, on the part of the committee unless the law would so infer from the facts found. The effect of this finding is to negative all improper intent on the part of the committee and all improper effect on their minds of the attentions they received, and to leave the question as a bare one of law, whether such attentions offered and received are in themselves and necessarily irregular and improper conduct under the statute. The whole question is a mixed one of law and faetj but predominantly of fact, and we cannot say, if the conduct has no impropriety in fact, that there is énough left of it to constitute improper conduct in law.

The idle talk of some ladies interested in the laying out of the road, seems by the finding to have attracted no attention and to have had no effect. It would be an impeachment of the.common sense of the committee to suppose that it possibly could have had. It needs some firmness of judgment and self control not to be prejudiced against a cause so advocated and biased in favor of the other side.

The claimed attempt to bias the committee by purposely running the steam yacht aground in Salmon Cove seems to be negatived by the finding. The court has in fact expressly negatived every allegation of the remonstrance not expressly found true.

The remaining reasons of appeal on the part of the town are the same with those of the appellant Gardner. They are — 1st; That the court should have decided the question of title to the land claimed by the said Gardner, and not have referred it to the committee to be heard and determined. —2d. That the committee having heard and made its report to the 'court had exhausted its power and discharged its duties as such committee. — 3d. That the committee was not an impartial and proper tribunal to hear and determine the questions upon the claims made by the said Gardner, it having prior to said hearing determined the questions involved in the case without notice to him.

It appears that Gardner remonstrated against the aceept.ance of the report of the committee on the ground that he had an interest in a certain piece of land over which the highway was laid out, and that no damages had been awarded him. The court found that he had legal notice of the pendency of the application for the highway, and of the time and place of the hearing, and that he appeared as a witness before the committee, and was heard as to the cost of the road and the convenience and necessity of the same, but that no evidence was offered as to damages sustained by him in the laying out of the highway over the land now claimed to be his. The court therefore ordered the cause to be recommitted to the same committee for the sole purpose of determining whether Gardner had, at the time of the service of the complaint, or of the hearing and layout, hny title to or interest in the land in question, and if he had, of assessing the damages sustained by and special benefits accruing to him by the laying out of the highway. The committee heard the question thus submitted, and made report that they found that Gardner had not at the time stated any title or interest in any of the land taken for the highway. The court therefore found the allegations of his remonstrance untrue and overruled it. The question now made is, whether the court properly recommitted the case to the committee to find the facts with regard to the title of Gardner and his damages if any.

This being a part of the matter which the committee were originally appointed to hear, there could be no objection, if their report was incomplete at any point, or if they had by some mistake made a claimed error, to referring the case back to them for a fuller or more correct report. The claim that they were not an impartial tribunal because they had once decided the point in question has no substantial foundation. The uncertainty was upon a mere matter of fact, easily determinable by an examination of the public records, and one upon which, especially as no question had been made on the point before, they could not possibly have had any pride of opinion. We see no objection whatever to the course taken.

There is no error in the judgment of the court below, and it is affirmed.

In this opinion the other judges concurred.

Case Details

Case Name: Greene v. Town of East Haddam

Court Name: Supreme Court of Connecticut

Date Published: Jan 25, 1884

Citation: 51 Conn. 547

Court Abbreviation: Conn.