70 Conn. 610 | Conn. | 1898
Lead Opinion
In the case of Imlay v. Union Branch Railroad Co., it was held that “ to subject the owner of the soil of a highway to a further appropriation of his land to railway uses, is the imposition of a new servitude upon his estate, and is an act demanding the compensation which the law awards when land is taken for public purposes.” 26 Conn. 249, 259.
The doctrine established in this case has since been treated as settled law; and was affirmed in the very recent case of Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146. In the latter case a distinction is drawn in respect to that class of street railroads that can “ be so built and operated as to serve the public, without injury to the landowner.” The precise question at issue was the right of the plaintiff (owner of the land covered by the highway) to an injunction restraining the defendant from building a railroad in the highway under authority of a charter which did not contemplate “the construction of a railway in such a manner as substantially to obstruct ordinary highway travel, or necessarily to
On this subject the court says: “ Two rights are to be guarded with equal care,-—that of the individual landowner, and that of the public at large. ... A street railway may be- so constructed and operated as to be a proper means of facilitating public travel. It may also be so constructed, but not so operated. It is, in such case, a means that may be and is abused; but for any abuse the law can supply the remedy. Nor would the legislative grant, in such a ease, avail to deprive the owner of the soil of his right to compensation. . . . If either the mode of construction or of operation be such as to make it a substantial impediment to public travel or a proximate cause of special damage, of a new description, to the owner of the soil, the law will give redress. ... If special and peculiar damage is done or threatened to any particular landowner, whether the proprietor of the fee in the highway or of adjoining land, his rights of action are clear and certain.” And it is stated as a reason for refusing the injunction, that the complaint did not allege that the contemplated railroad would necessarily cause special damage to any landowner.
The case rests on two propositions which must be taken together: one, that the State may authorize the construetion and operation of railroads of a certain description within the highway, without invading the possessory rights remaining in the owner of the fee; and the other, that when a private corporation as grantee of such franchise causes special and peculiar damage to any landowner, compensation must be made. This conclusion presents a practical method of dealing justly,—guarding “with equal care the rights of the individual landowner, and of the public at large,”—with the novel questions arising from combining within the same territorial limits facilities for railway travel and ordinary travel; and as a practical result was substantially approved by all the judges, although they differed somewhat widely as to the
In the present case the plaintiff alleges that the defendant has, without making compensation therefor, constructed a double track electric railroad upon its land, and claims a perpetual injunction restraining the operation of the road, and an order requiring the defendant to remove its tracks. The defense is that the land occupied by the defendant’s tracks is a public highway, and is so occupied by authority of the legislature. The complaint also sets out that the alleged highway is crossed by the plaintiff’s railroad tracks, and the special damage alleged is largely confined to that arising from a dangerous grade crossing.
If the only interest of both the plaintiff and defendant were a right, derived from the State, of passing over a highway, the one transversely and the other longitudinally, such elements of damage could hardly be the subject of compensation unless by force of special legislation. New York, N. H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 432. They can be considered only in connection with some deprivation of a property right. There is nothing in the record to distinguish the defendant’s road from the harmless street railroad contemplated in the Canastota Knife Co. case, unless it be its injurious effect on the property of landowners. The plaintiff (assuming its land to be covered by a public highway) is not entitled to injunction or compensation for the mere occupation of that land by the tracks of the defendant. There must be some peculiar and special damage done to the property of the plaintiff. It is doubtful, at least, whether such special damage is sufficiently alleged in the complaint, although it is found in the agreed statement of facts. If, therefore, the defense were clearly supported by the facts found, we might properly deny the injunction; leaving the plaintiff to its legal remedy for such special damage as it may have sustained. But this defense is not clearly supported. The finding of facts presents a most exceptional case.
The alleged highway which the defendant has occupied,
(The defendant’s tracks from Y to Z are laid on a conceded highway; from Y to X they cross the plaintiff’s land known as parcel B; from X westerly they are laid on a highway. The plaintiff’s railroad tracks cross as indicated.)
The only limitation on absolute ownership is such rights of crossing the land included in parcel B, as “now exist by law.” The only right of crossing then existing by law, was that connected with the use of the toll-bridge. The ownership of the Bridge Company passed to the Railroad Com. pany, but that ownership was coupled with an obligation to permit and maintain a passage for the uses of the toll-bridge as then existing by law; and the finding states that since the deed of release of 1868 the plaintiff has used, maintained and repaired the 110 feet of the causeway included in that deed; thus fulfilling the obligation of the Bridge Company.
It is suggested that because, when the bridge was first constructed, the toll-gate was placed at the extreme western end, and in 1820 was moved 1,200 feet easterly and placed near the commencement of the bridge structure proper, a dedication of that 1,200 feet of causeway as a public highway must be inferred. The location and change of the tollgate depended on the will of the company,—in this respect
It is claimed that in 1868 the defendant was entitled by law to cross parcel B, with its railroad tracks. This claim may include the claim that there is no distinction between the power of the State to authorize the construction of a railroad upon a turnpike or a toll-bridge, and its power to authorize a railroad upon a statutory highway. We think there is a material difference, although in some reported cases it seems to have been overlooked. The difference is this : in the one case the possessory right disturbed by the railroad belongs to the State, and in the other it belongs to a private corporation. The establishment of every public highway (whether by layout or dedication), involves in the State a duty of maintenance and a power to do all acts incident- to the performance of that duty. In the construction and maintenance of a highway a valuable property is accumulated which belongs to the State or its agents. This interest of the State in a highway may be given away.by the State without compensation, unless its agents have acquired a vested right. But in the case of a turnpike, the right and duty of maintenance included in the franchise, and the accumulation of property in the construction and maintenance of the road, belongs to a private corporation. It constitutes property in that corporation entitled to protection. A fortiori is this true of a toll-bridge. A bridge-way not one mile in length might cost $500,000 to construct, and is property both in the value of the franchise and in material. It is difficult to see how the State can, without compensation, appropriate this, any more than other property, to the uses
In 1865 the defendant undertook to lay its tracks upon the causeway of the Bridge Company across parcel B, and was stopped by a temporary injunction obtained by the Bridge Company. Thereupon, and upon application of the defendant, the Bridge Company, with the consent of the Railroad Company, made an agreement with the defendant, dated April 25th, 1866, whereby the Bridge Company agreed to permit, upon the conditions set forth, the defendant to extend the track of its horse railroad across the tracks of the N. H. & H. R. Co., and along the causeway to a point near the wharf; and the defendant agreed to construct and maintain such arrangements for crossing the tracks of the Railroad Company as should be approved by its superintendent, and to repair and care for that portion of the causeway occupied by its track, to the satisfaction of said superintendent. The agreement then stated: “ It is understood that it is not intended to convey to said Fair Haven and Westville Horse Railroad Company by this instrument any right or interest in or to the said causeway, or to the land over which said horse railroad track may be laid, but simply to grant, for the public accommodation, to said railroad company, the privilege of constructing and operating said horse railroad thereon for an indefinite term. And if at any time hereafter it shall be deemed by the board of directors of said bridge company that the public accommodation does not longer require said horse railroad track to be continued on said causeway and property of said bridge company, or if for any other reason said board of directors shall be of opinion that it is expedient that said horse railroad track should be removed, said directors may give notice of such decision to said railroad company, and thereupon within six months from the day of giving such notice, said tracks shall be removed by said horse railroad company, and the privileges thereby granted
In 1886 the Bridge Company sold and conveyed to the city and town of New Haven, its toll-bridge and causeway, bounded westerly by parcel B belonging to the plaintiff, and easterly by high water-mark on the easterly side of New Haven harbor, the municipal corporations agreeing to maintain the same as and for a public highway until the same be legally discontinued; but upon such discontinuance the same, disburdened of the servitude of such use, was to revest in the releasor as fully as if the deed of conveyance had never been executed. This sale was made in pursuance and under authority of a special Act passed in 1867, authorizing the Bridge Company “ to sell and dispose of said bridge, or any part thereof,” to the town and city of New Haven, or to such person or corporation as may desire to purchase the same. The Act provided that its acceptance by the Bridge Company as an amendment to its charter should not affect the inviolability of the original charter or any amendments thereof; also that a sale under authority of the Act should not impair in any manner the rights of the company to all its property not sold under authority thereof, but that all such property should be and remain vested absolutely in such company. 6 Special Laws, 182. After this sale and down to the present time, the city of New Haven has maintained said causeway so purchased and lying east of parcel
In 1895 the General Assembly authorized the merger of the Bridge Company and the plaintiff, and the plaintiff has succeeded to all rights, franchises and property granted and belonging to the Bridge Company, subject to the duties imposed upon the same by its charter and amendments thereto. 12 Special Laws, 632.
The defendant has no authority to lay its double track electric railroad, by virtue of the conditional permit given it to lay a horse railroad track in 1866. It has no authority to lay such track under its original charter, without first making compensation. The sale to the city of New Haven of a part of the bridge in 1886, does not give the defendant or the municipal corporation any rights in respect to the part, not sold, and belonging to the plaintiff since 1868. If a city sees fit to lay out a new highway so that its use depends in-part on a limited right of crossing private land, defined by matter of record, and does not see fit to lay out any highway over that land, the rights of the owner cannot be affected by the construction of the new highway, or by its use in connection with the crossing of his land in pursuance of the-rights of crossing established and recorded.
The defendant claims, however, authority to lay its tracks under an amendment to its charter passed in 1893. That amendment authorizes the defendant to lay its tracks in a large number of streets specifically named, not including the crossing of the plaintiff’s land. That right is claimed from a general clause which authorizes the defendant “ to lay a second track in those streets of the city and town of New Haven which it now occupies with a single track, except West Chapel street.” 11 Special Laws, 1040. The crossing on the plaintiff’s land is not a street, within the meaning of the Act authorizing the use of a highway without compensation ; that is, this crossing is not a public highway of which the State, either by itself or public agencies, has complete
It is now claimed that after a lapse of twenty-five years,
This theory is wholly wrong. We have called attention to the material distinction between a bridge-way and a public highway; and there can be .no question but that the bridge-way was in fact condemned. The Bridge Company had no subsequent control of that way; all power of control and every right of property became, by the condemnation, vested in the plaintiff. The bridge-way became a part of the plaintiff’s depot grounds, subject only to the condition of the condemnation, i. e., such “ rights of crossing as now exist by law.” This language cannot be construed as meaning the “bridge-way now existing,” and certainly not as meaning the “ highway now existing; ” it must be construed consistently with the fact of condemnation of an existing way. That way existed by law and was condemned by law; but there were rights of crossing the land so condemned, then existing by law, in each one of the public having occasion to use the bridge; those rights were continued, but in all other respects the way was condemned and became the property of the plaintiff.
The reasonableness and necessity of such a construction is apparent when we consider the purpose for which the condemnation was made, and the surrounding circumstances. The exclusive use of the land necessary for depot grounds, was provided for by the condemnation of the way; the continued use of the bridge, by a reservation of the existing rights of crossing. These rights had no reference to the power of the Bridge Company, as agent of the State, over
The plaintiff has done nothing to qualify its rights of property acquired in 1868. It has fulfilled its obligations in respect to the crossing to which its land is subject, and has maintained and repaired that crossing as the owner thereof ; nor does it appear that either the State or city of New Haven has exercised in respect to the crossing any duty of maintenance as the owner of a public highway. In view of all these special circumstances, we think the plaintiff stands in a different position from that of an adjoining proprietor owning the fee of an ordinary public highway; that it has a property in this crossing which the defendant has taken; that the defendant’s charter as amended did not authorize it to take this property without compensation, but, on the contrary,made it liable for all damages occasioned by making its road, and provided the method for appraisal of such damages; and also provided that the road should not be opened across the lands of any person without compensation for damages. If the charter makes an appraisal a condition precedent to opening the road across the plaintiff’s land, the injunction asked for must be granted, but if the charter cannot be so construed, granting the injunction may be a matter of discretion. In either view, we think an injunction should be granted.
The finding states that in 1893, when the defendant’s permit to use a single track horse railroad was revoked, it had become necessary to the safe management of the plaintiff’s road, to stop the use of said crossing by the defendant and its cars ; that such crossing and use of the plaintiff’s property and tracks by the defendant, seriously interfered with the management of the plaintiff’s business and the proper use of its property and safe operation of its road; and that this use of the plaintiff’s land by the defendant materially dimin
It appears that the defendant has obtained from the railroad commissioners an approval of the grade-crossing, and from the authorities of New Haven an acceptance of its plan of construction. These proceedings are necessary to the construction of the road, but have no relation to the defendant’s right to take the plaintiff’s property without compensation.
The Superior Court is advised to render judgment granting the prayer of the plaintiff’s complaint; the terms of the injunction, consistent with the enforcement of the plaintiff’s rights as decided, to be settled by the Superior Court after a hearing for that purpose.
In this opinion Andrews, C. J., and Hall, J., concurred.
Dissenting Opinion
(dissenting). In this case I feel obliged to dissent from the conclusion reached by a majority of the court, that the plaintiff is entitled to an injunction. The locus in quo is a small piece of land near the westerly end of what is called the “causeway” leading to “Tomlinson’s Bridge,” so-called, and lies wholly within the limits of said, causeway. It is now crossed by certain tracks of the plaintiff and by the double tracks of the defendant’s electric street railway. The plaintiff asks for an injunction to restrain the defendant from operating its street railroad over the locus, and an order requiring it to remove its tracks therefrom. The defense is, that the locus is a public highway and is occupied by the defendant under the authority of the legislature. With reference to this defense the majority opinion says this: “ The plaintiff (assuming its land to be covered by a public highway) is not entitled to injunction or compensation for the mere occupation of that land by the tracks of the defendant. There must be some peculiar and special damage done to the property of the plaintiff. It is doubtful, at least, whether such special damage is sufficiently alleged
The defense, as before stated, was (1) that the locus was a public highway; (2) that it was occupied by the defendant for a street railway by legislative authority. Upon the facts found it is clear, and is not disputed, that this second part of the defense is true. The defendant’s tracks were laid there and it operates its road there, by legislative authority. The only question then is whether the first part of the defense—-that the locus is a public highway—is supported by the facts agreed upon. If it is, the majority opinion concedes that the injunction ought not to issue.
The main facts bearing upon this point are these: The Bridge Company was incorporated in 1796 to build and maintain a bridge across New Haven harbor to East Haven. In 1799 it built and completed a bridge, and a causeway leading to it, from the present junction of Bridge and Water streets in New Haven. The causeway was about fifty feet wide and about twelve hundred feet long. When this was done the Bridge Company erected a toll-gate at the westerly end of the causeway, and took toll there. In 1822 the Bridge Company removed the toll-gate to a point near the westerly end of the bridge, where it remained until the bridge was made a free bridge, in 1886. Prior to 1840 the Bridge Company obtained title to the flats in the vicinity of the bridge, filled them up and reclaimed the land, and built public docks or wharves there and otherwise used the reclaimed land as its own. In 1840 the plaintiff acquired the right from the Bridge Company, to use such property of the Bridge Company in the vicinity of the causeway as it might require for railroad purposes, and in connection with its use, of the docks there. Under the rights thus acquired the plaintiff, in 1841, laid its tracks across the westerly end of the causeway substantially where they now run. In 1865 the defend
Upon the facts found, I do not think this license has any bearing upon the question whether the causeway was or was not a public highway, and it may therefore be laid out of the case.
In 1868 the plaintiff brought proceedings to condemn and did condemn and take two certain described pieces of the Bridge Company’s property in the vicinity of the causeway. One of these pieces, the smaller one, is the only one we are here concerned with, as it includes the locus in quo. This piece is known in the record as parcel B. The precise locus in quo is a small part of parcel B near the westerly end of the causeway, and lying wholly within the limits of the causeway, substantially covered by the crossing tracks of the plaintiff. Parcel B was taken by the plaintiff under its condemnation proceedings, “ subject to such rights of passage over the same as now exist by law.” This is the language used by the plaintiff, and it is clearly broad enough to include a public highway, if one then existed over parcel B. Subsequently in the same year (1868) the Bridge Company conveyed to the plaintiff by deed whatever residuum of rights it had, if any, in parcel B, which had not been taken by the condemnation proceedings.
So far as the persent question is concerned, I think this deed conveyed nothing to the plaintiff. It had already acquired whatever rights the Bridge Company had in parcel B. It is under the condemnation proceedings and this deed that the plaintiff claims to be the owner in fee of the locus in quo, free from the servitude of a highway, at least so far as the defendant is concerned. In 1886 the Bridge
The claim of the plaintiff is that a small part of the causeway is not a highway for the purposes and uses of a street railway, while all the rest of it is a highway for all purposes and uses. I am unable to see any reason for making a distinction in this respect between the locus in quo as part of the causeway, and any other part of the causeway. If the one is a public highway the other is also. Upon the agreed facts, then, I think that the entire causeway in 1868 was subject to the servitude of a public highway, and that the plaintiff took the locus in quo and holds it subject to that servitude. For tins reason I think the defense put forward is fully supported by the agreed facts; and if this be so the majority opinion concedes that no injunction should issue, even if the plaintiff is entitled to damages for the acts of the defendant.
But I dissent entirely from the further conclusion reached
The agreed facts show that the tracks of the plaintiff over the locus in quo are not its main line tracks. They lead to its freight yard and freight depots, and are used mainly for freighting and switching purposes. In the agreed statement of facts, the “ peculiar and special damage done to the property of the plaintiff ” is set forth in paragraphs 21-26 and 29. These statements amount to this, in substance: Owing to the growth of the city, the use of tins crossing by the general public and by the defendant has greatly increased of late years and will continue to increase; and owing to the increase of the plaintiff’s business, its use of this crossing and of its freight yards and depots adjoining has greatly increased and will continue to increase. This use of the crossing by the general public and by the defendant seriously interrupts, delays and obstructs the plaintiff’s business here, and interferes with the proper use of its property, and the proper, safe and economical operation of its road. It makes
These, in brief, are the facts agreed to upon this point, so far as they concern the damage to the plaintiff. These facts do not show any peculiar and special damage done to the property of the plaintiff by the defendant, within the meaning of the principles laid down in the Canastota Knife Co. case. They show the existence of a very dangerous grade crossing here; dangerous to the plaintiff, to the defendant and to the general public. The plaintiff is undoubtedly hindered and delayed in its business and put to expense by reason of the existence of such a crossing; but that delay and expense is caused not by the defendant, specially or primarily, but by the fact that the plaintiff’s tracks are laid across a public highway, the use of which by the general public becomes greater every year. I agree that this grade crossing should be abolished as soon as possible, but the fact that it exists is no reason why, upon the agreed facts, the defendant should be enjoined from operating its street railway there.
In this opinion Prentice, J., concurred.
Application for leave to file a motion for reargument was made July 23d and denied July 26th, 1898.