22 Conn. 74 | Conn. | 1852
The declaration contains a count in trespass,for making an embankment on the plaintiff’s land, in Cherry street, in New Haven, where that street divides the land into two separate lots, one being on each side of it. The defendants’ railroad is not constructed upon the plaintiff’s land, but is bounded by it, where it crosses Cherry street, as far as his land extends.
The motion states, that the public safety required, that the railroad should pass under Cherry street; and for that purpose, it was necessary, that the street should be carried over it, by means of a bridge, and that it should be sufficiently filled up, at the point -where it crosses the plaintiff’s land, to accommodate its grade to the height of the bridge. Such alterations of highways, where the railroad is made to cross them, are contemplated in the defendants’ charter; and, as the embankment in question was made, for the purpose of restoring Cherry street to its former state, ■“ or in a sufficient manner not to impair its usefulness,” it must be considered as licensed, or authorized thereby. The plaintiff, however, claimed, that, as no damages were appraised or paid to him therefor, under the charter, he was entitled to recover them, in this action. And he further claimed, that he was entitled to recover, on the count in trespass, whether he proved any actual injury or damage, or not.
So far as this case is concerned, an examination of the latter clause of this proposition, has become wholly unnecessary ; because, the jury having found a substantial injury, to the extent of $3,000, for which they gave the plaintiff
We do not deny or dispute the doctrine of the cases cited by the plaintiff, in support of his claim; but we do not see that they apply to this case. No doubt, he still owns .the fee of this land; and the public, by establishing the highway, only acquired a right of way over it, with the incident right of repairing it in a reasonable manner. Our own case of Chatham v. Brainard, and the cases on which it rests, decide that very fully; and if here, as in the New York cases, the defendants had laid their railroad over this land, and had laid down their timbers and rails upon it, and had thus appropriated it to their own use, we do not deny that they would be liable for such an entry. In such a case, the subjecting of the plaintiff’s property to an additional servitude, is an infringement of his right to it, and is therefore an injury and damage to him. It would be a tak-' ing of the property of the plaintiff, without first making compensation, which the defendants’ charter does not authorize ; and we are not now about to say, that it would be legal or constitutional, if it did. But, the acts complained of in this cafe, are precisely of the same character, as a portion of the defendants’ acts in the case of Bradley, 21 Conn. R., 294, which we held not to constitute a taking, within the meaning of their charter, or of the constitution of the state.
To return, then, to the question on which this point turns : were the acts of the defendants authorized in the first place, by their charter? and if so, then, were they, by the general law of the land, illegal, notwithstanding such authority ?
By the tenth section of their charter, it is provided, that “whenever, for the construction of their railroad, it shall become necessary to intersect or cross any stream of water, or water-course, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same, but the said company shall restore the said stream,
The question, then, resolves itself into a question of power in the legislature, to alter the grade, or authorize a corporation, or individuals, to alter the grade of a highway. But the legislature may construct and establish new highways, or it may delegate this power to subordinate bodies or corporations, as, to the county court, to towns and cities,
We, however, have been unable to see, that the defendants could have suffered at all, from the ruling; and we have only examined the point, that it may be understood, that we do not sanction the ruling, as a correct exposition of the law. The defendants admit, as they must, that if the plaintiff has sustained any appreciable damage, he has a right to recover for that; and it is not denied, that it is proper for him to recover for it, on this count. It is not necessary or very material for us to decide, whether trespass or case would be the appropriate remedy, because the plaintiff has declared, as by our statute he may, in both forms, for this injury. Still we do not see, why trespass, with force, is not the proper remedy. We think it is; and that he can recover in that form, if he can recover at all. He owns the land, and, subject to the public easement, is in possession of it. The injury to it, by the defendant, is direct, by his entering upon it, and depositing materials there. So far as he is justified in this, in consequence of there being a highway there he is not guilty of anything; but if he goes beyond his jus
A new trial is asked for, on the ground, that the damages given were excessive, and contrary to the weight of the evidence. It is said, that the jury must have disregarded the instruction of the court, “ that in their estimate of damages, they should, allow the defendants the local, personal, and particular advantage to the plaintiff’s premises, occurring from the construction and use of the road.” If it could be seen, that this was so, then undoubtedly the defendants would be entitled’to a new trial, on that ground, unless, indeed, the instruction given was itself erroneous ; but this is not claimed, and could not be. The rule of damages is given in the defendants’ charter, and is a rational and just rule. When the damages are assessed, by freeholders appointed for. this purpose, in the manner prescribed by the charter, they are to inquire into the extent of them, and they are to “ assess just damages to the person or persons, whose real estate may be taken or injured.” The language is substantially the same as is used, in regard to the laying out of highways, by selectmen or the county commissioners,—in which case, we believe the practice is, in the assessment of damages, to consider the local and peculiar benefit that the proprietor, whose land is taken, receives by the improvément, in respect to his lands not taken, but which are contiguous to the road; damages, thus assessed, are properly considered the only “just damages.” If this would have been the rule, had the damages been assessed by freeholders, it seems to be the proper rule, in a case like this. Now, damages made up in this way, must of necessity be mere matter of opinion. The only precision there could be in the case, was, in regard to the expense • the plaintiff
We therefore do not advise a new trial.
In this opinion the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.
New trial not to be granted.