70 Conn. 390 | Conn. | 1898
The complaint alleges that neither Ivy nor Hazel street has ever been constructed across the layout and rails of the plaintiffs, and that that portion of each of said streets -within the limits of the layout of the railroad is, and for a long time has been, impassable in vehicles, by reason of ditches and embankments and the absence of planking. The defendant answers that said streets for more than thirty years have been highways, and as such have existed across the railroad tracks of the plaintiffs, open to public travel and used for the purposes of public travel. The plaintiffs demur to this answer.
There seems to be some doubt from the pleadings whether grade crossings have ever been constructed over the plaintiffs’ tracks at the places in question, nor is it entirely clear from the record what the contention of the defendant is as to the power of the city of New Haven in the construction of these crossings.
The order of the court of common council of New Haven, which the answer admits to have been passed, directs the board of public works “ by grading and planking ” to “ construct crossings within the lines of the layout of said Ivy street and Hazel street, so as to make a way over the tracks of said railroad at grade passable for vehicles and travelers.”
If it be the defendant’s claim that because Ivy and Hazel streets were laid out as highways thirty years ago across the plaintiffs’ tracks, and that though the crossings have at no time been actually completed across the rails of the plaintiffs’ railroad, and have never been constructed so as to be passable by vehicles, yet because these streets have been open across the tracks and have been used to some extent for the purposes of public travel during- that period, the city may now construct grade crossings at these points, or may by grading and planking complete the partially constructed crossings so as to render them passable in vehicles, —such claim is, in our opinion, untenable.
Section 3481 of our General Statutes prohibits the construction of a highway, or a new portion of a highway, across a railroad at grade. This section does not mean that high
Even though these highways were laid out across the plaintiffs’ tracks many years before the passage of the Act of 1883, and though the construction of the highways across the tracks had been partially finished, and so as to admit of their use in some of the ordinary methods of public travel, but not in others —as for foot travelers, but not for vehicles — neither the court of common council nor the railroad commissioners had authority after this law had gone into operation, to order the completion of the construction of the crossings at grade. If such partial construction of the highway is to be completed, it must be over or under the railroad, as may be directed by the railroad commissioners.
This court in the case of the New York & N. E. R. Co. v. Waterbury, 55 Conn. 19-24, in speaking of the purpose of this Act said: “ It means that although a highway may have been previously laid out,' partially constructed and even built upon, if it has not actually been completed for public use across the rails of the railway, such crossing shall not thereafter be made.” And again: “ If it (referring to the highway then under discussion) had been legally laid out, the construction of any portion of it across the. plaintiff’s railway at grade became illegal before it was accomplished.”
But the record before us does not furnish a complete history of the construction of these crossings, nor full information as to their present condition. We must, therefore, consider the case in another of its possible aspects. Let us assume that the construction of these crossings had been fully completed for public travel in all its ordinary forms, before the passage of the Act of 1883; but that at the present time, in order to render public travel across the railroad at these points safe and convenient, it is necessary that the
We think it clear that they cannot; and that the city can neither do this work by its own agents, nor authoritatively order it to be done by the railroad company, even after the refusal of the latter to perform it. This work, though for the benefit of those who use the highways, should be performed so that neither the act nor the method of construction will unnecessarily interfere with the operation of the plaintiffs’ railroad, and so as in the least degree possible to endanger life and property. Manifestly, it can best be so performed by and under the direction of the experienced employees and officers of the railroad company. Section 3499 of the General Statutes expressly requires this work to be done by the company operating the railroad crossed by such highway. The city of New Haven would not be liable for an injury to person or property caused by the unprotected and unguarded condition of these railroad tracks. Section 2673 of the General Statutes providing an action for injuries sustained by reason of defective roads and bridges, enacts that “ when the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.” The tracks of a railroad are a structure, within the meaning of this provision. Lee v. Barkhampsted, 46 Conn. 213-218.
It is claimed by the defendant that § 31 of its charter, giving the court of common council sole and exclusive authority and control over all streets and highways within the limits of said city, and sole and exclusive power to lay out, make or order and repair such highways (9 Special Laws, p. 287), empowers the city to construct these crossings. The plaintiffs contend that under § 3499 of the General Statutes this work must be done by the railroad company and not by the city, and that upon the refusal or failure of the railroad company its performance can be compelled only by the order of the railroad commissioners.
The subject of the relative powers, over highways at railroad crossings, of the court of common council of New Haven, as defined by § 31 of its charter, and those of the railroad commissioners, under the general laws of the State, has been recently considered by this court in the cases of Cullen v. New York, N. H. & H. R. Co. et al., and Tallmadge v. Same, 66 Conn. 211-222.
It is our conclusion that the city authorities of New Haven have neither the power to order the railroad company to construct or repair these crossings by planking or timbering them, nor to perform this work of construction or repairing by the agents of the city; that if this work may now be lawfully done and this crossing be made passable at grade, the only remedy of the city, upon the refusal or neglect of the railroad company to perform the duty imposed upon it by statute, is by application to the railroad commissioners under the provisions of § 3499 of the General Statutes,
There is no error.
In this opinion the other judges concurred.
