15 Conn. 312 | Conn. | 1843
We have not been able to see how the facts stated in the pleas present the case more forcibly for the defendants, than the facts found by the jury upon the former trial. In both cases, the authority derived by the act of incorporation, and by the directions or consent of the commissioners as to the construction of the canal and waste-wier, are the same. In neither case, is it pretented, that the plaintiffs land was taken for the use of the canal, or any injury to it contemplated, by- the commissioners, or damages assessed therefor; and in neither case, is it claimed, that there was any neglect on the part of the defendants, in constructing their dam, or suffering the waters to accumulate. But in both cases, it appears, that the defendants conducted prudently and judiciously, so far as regards the canal, and did no injury to the plaintiff’s land, except the voluntary turning the water of the canal through the waste-wier, thus conducted upon and over and across the plaintiff’s land, injuring the same no further than was necessary to protect the canal and its navigation from imminent danger, in consequence of such surplus water. The third plea speaks of using the waste-wier with consent of the commissioners. We do not suppose any thing more is intended by this, than the consent
We cannot perceive any important facts presented in these pleas, but what was before considered as part of the defendants’ justification, except that which regards the forum to which the plaintiff should apply, fin both cases, the great question is, whether the act, and the doings of the commissioners under it, justified the defendants, a private company, incorporated for a public object, voluntarily to injure or destroy the plaintiff’s land, to protect their own property, without taking the land, or paying for the same, in the manner provided for making compensation under that act. )
In the former case, we were of opinion it could not be done; and nothing we have heard now has induced us to change that opinion. We did not believe, that the legislature had made, or intended to make, such a grant. When we considered the terms of our constitution, that private property should not be taken without compensation for public uses, we supposed we could not refuse to say, -with a court who were not limited by such an instrument, that the canal eom-^ pany had not paid for, and ought not therefore to obtain, un-1 der the act, the right to prevent the land-owner from enjoying * his own property — Dudley Canal Co. v. Grazebrook, 1 B. & Adol. 59. (20 E. C. L. 349.) even although they had not themselves taken it; and that the English cases cited or alluded to, did not contain such a principle. Those were actions, not against a corporation deriving a benefit from an injury to an individual, but suits against commissioners or trustees, appointed to execute a public trust or duty, representing the public, and having themselves no personal interest therein.
In such cases, the court say, that if they act fairly and honestly, within their jurisdiction, and not arbitrarily or maliciously, but according to the best of their judgment, they shall not be responsible in damages for a remote consequen-
We do not mean to say, however, that injuries may not be done to private property, so necessarily connected with the making of such roads or canals, as will not form a grpund of action, as the stopping drains from lands which the canal passes through; for, in such cases, it must, says Judge Thompson, be presumed, that this fact must have been taken into consideration in the appraisal of damages. Steele
Nor do we deny, that there are remote consequential injuries, for which no action will lie ; as where, by reason of ' , ,. . , , „ . . sorae public improvement, the value oí property is greatly affected, but the property is left uninjured; as where a new road is opened, so as to turn the travel from a former road, by means of which rents are much diminished; or where a turnpike road or toll-bridge is so near to another as greatly to affect the toll of the former proprietors; or where a rail-road is laid by the side of a turnpike road. Mohawk Bridge Company v. Utica & Schenectady Rail-Road Company, 6 Paige 554. However just it might be that the public should offer some compensation to the sufferers, no action will lie against the new company. So too, it has been held, that where the commissioners on the New-York canal, constructed a basin in the Hudson river, by reason of which a wharf in the river was much affected in value, and the passage to it much impeded, no action would lie against the canal commissioners. Lansing v. Smith, 8 Cow, 146. This may have proceeded upon the ground that the injury was too remote ; or that the state had a right to controul and improve the navigation of the river, in a manner best adapted to public uses ; or that the commisioners were not liable.
Neither do we intend to deny, that an authority to execute a great public work, carries with it an authority to use the appropriate means. 3 Met. 380. We held otherwise in Burroughs v. Housatonic Rail-Road Company, 15 Conn. Rep. 124.
But we do intend to say, that we see nothing stated in these pleas, which shows, that the damage done this plaintiff, was inseparably connected with the construction of this canal; or that other means could not have secured its continuance. If the plaintiff’s land was wanted as a reservoir for the water of the canal, we see no difficulty in the defendants, under the 5th section, entering into and taking possession of the land, as necessary for the improvements intended by the act, making compensation therefor, as in other chses. It does not seem to have been supposed, that it would be needed ; otherwise, we cannot believe, that the commissioners would have neglected to make some entry or return thereof, and appraise damages therefor. The commissioners indeed,
The maxim Sic utere tuo ut alienum non Icedas, is as applicable to one claiming under legislative grant as to one claiming under private grant; (5 Cowen, 156.) to public corporations, as to individual citizens. In Dudley Canal Company v. Grazebrook, 1 B. & Adol. 59. (20 E. C. L. 348.) Bayley, J. says, this is a well known legal maxim. Its application in the present case, cannot be disputed. And a court in an adjoining state, to whose opinions we look with great respect, says, that corporations, as well as individuals, are bound so to use their rights as not to injure individuals. Lowell v. Boston & Lowell Rail-Road Company, 23 Pick. 30. When therefore, Liltledale, J. says, “I agree that a private individual must so use his land as not to injure that of another; but the private individual acts for his own benefit, and he ought not to obtain a benefit at the expense of his neighbour; ” it must be taken in reference to the subject matter of which he speaks — a suit against trustees; for he goes on to add : ‘’But where an act of parliament vests a power in trustees or commissioners, to be executed by them, not for their own benefit, but for that of the public, and gives no compensation for a damage resulting from an act done by them in the execution of that power, the legislature must be taken to have intended, that an individual should not receive any compensa
These defendants are not a public corporation. They are not such as are founded by the government for public purposes, and where the whole interest belongs to the government. If a bank is created for its own uses, the whole of whose stock belongs to the government, it is, in the strictest sense, a public corporation; but when owned by private persons, it is a private corporation, though its objects and operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge and turnpike companies: in all these cases, the uses may, in a certain sense, be called public; but the corporations are private, as much so indeed as if the franchise was vested in a single person. Per Story, J. Dartmouth College v. Woodward, 4 Wheat. 669.
This private corporation, whether it consists of one or more individuals, must then stand upon the same ground as individuals who have not an act of incorporation, and have no more right to violate the great principle of natural equity contained in the above maxim. And when a grant is made to a corporation which is a public corporation, as to the city of New-York, for an object of the greatest importance, but for the private advantage and emolument of the city merely, though the public derive a common benefit therefrom, the corporation, quoad hoc, are to be considered a private corporation. Bayley v. Mayor of New-York, 3 Hill 539. And though the case itself was subject to other considerations than this, yet the principle laid down by the court, that such corporations are liable to the discharge of any duty or obligations
The defendants say, that if another mode of satisfaction is given by the charter, that mode must be taken, and trespass will not lie. Lebanon v. Olcutt, 1 N. Hamp. R. 339. Calking v. Baldwin, 4 Wend. 667. 671. And we are inclined to think that proposition is correct, though it seems to be doubted. Crittenden v. Wilson, 5 Cowen 167. But in such a case, it must devolve upon the defendants to show that such a remedy is given by the act. It is not enough to say, that the subjecting of the defendants to actions of trespass, is a burdensome and expensive remedy. The question is, whether another is provided under this statute incorporating the defendants. We have listened with attention to the arguments of the defendants’ counsel, and carefully examined the charter to find the authority given to the commissioners, which would reach this case; but we have not been able to find any such authority. The only sections under which it can be claimed, are the 4th, 5th and Gth. Priv. Stat. 301, 2. The 4th directs the appointment of commissioners, and prescribes their duties, which are, to survey and lay out the canal and the works connected therewith, to notify the persons whose lands are taken, to assess damages therefor, to make entries
But if we consider that this land is taken, and that the commissioners may, at any time, make an appraisement, a question arises, whether as this has not been done, the defendants are justified at all, because it might have been done, or even if it may now be done. In such a case, before a private corporation can take property of individuals, they must pursue the letter of the law upon which they found the claim ; and therefore, in this case, the defendants ought to have proved, that a survey was made, that they have made their entry, and manifested, in a proper manner, that they were about to take the property and procure the appraisement of it, and perhaps also make compensation for it. In New-York, it has been decided, that where the defendants have not followed the directions of the act relative to the compensation to be made, to the owners of the land through which a turnpike road has been made, they were trespassers. The People v. The Hillsdale and Chatham Turnpike Company, 2 Johns. Rep. 190. And although the same court has held, that where the act expressly allows the commissioners to assess the damages, on application of either
Is this then within the 6th section of the act ? That certainly relates to cases arising after the canal was constructed, and to unforeseen accidents arising to the canal or its navigation; to repair which it authorises the company to enter upon contiguous lands, to dig and carry away stone and gravel, and other materials, except timber, necessary and proper for such reparations, doing as little damage as the nature of the case will admit; and if the owners claim damages,they shall be assessed by the commissioners. The legislature say, that to repair an injury to the canal already incurred, you may take the property of individuals. The defendants call upon the court to say, that therefore, for an apprehended injury to the canal, they may injuriously affect the property of others ; and that as power is given to the commissioners to appraise damages resulting from property actually taken and thus affected, because under authority of the act, the commissioners are empowered to appraise damages for an injury to property voluntarily committed, for the purpose of protecting their own. We do not feel authorized to extend a power of this kind by implication. The legislature, for public purposes, have endowed a private corporation with.extensive powers, for such objects as they deemed necessary. It is not enough to say, the privilege in this case is equally necessary; nor can we say, because this company may take gravel, and stone, and earth, to repair damages incurred, and cause them to be appraised, that therefore they may destroy a field, by inundating it; and then call upon the commissioners to appraise that damage. If no provision is made for taking or using lands for such purposes, which had not been originally taken, of course there can be none for the appraisal of them.
This view of the subject makes it unnecessary for us to consider a question which may arise upon that section, whether a provision of the kind, without actual payment,
It was further claimed, that at all events, the action of trespass would not lie, but it must be an action of assumpsit, or a bill in chancery. As to the last proposed remedy, where money alone is sought, and common law proof can be had, the general rule is, that you need not go to chancery, except in case of fraud, accident or mistake.
It is said, however, that trespass will not lie for a rightful act done in a rightful manner. The claim is here, that this is not a rightful act, done in a rightful manner; but that, if the act could be done at all, it has been done in a manner entirely wrongful: of course, we do not see how the act itself can be justified. Trustees, or commissioners even, are liable, when they exceed their authority; and when these defendants turned the water of this canal upon the plaintiff’s land, without attempting to appropriate the land under the statute, we cannot sanction that as a legal act. Of course, we advise that the plaintiff’s rejoinder is sufficient.
Judgment for plaintiff.