25 Conn. 19 | Conn. | 1856
The plaintiffs are a corporation under a charter granted by the general assembly, and the defendants are also a corporation, organized under the provisions of the statute in relation to joint stock corporations. Both companies are engaged in the business of making and supplying the city and town of Norwich and the inhabitants thereof with gas. The plaintiffs, under a grant or license to Frederick W. Treadway, the interest in which they have acquired by assignment from Treadway, and under their original act of incorporation and an amendment thereto, passed in 1855, claim the exclusive right to use the streets and public grounds of the city for the purpose of laying down gas-pipes and erecting gas-posts and burners therein.
The court of common council of the city of Norwich, on the 4th of August, 1851, passed a resolution which purports to grant to Treadway and his heirs and assigns the right to lay gas-pipes and erect gas-posts, &c., in the streets of the city, and it declares that the privileges thereby granted shall continue and be in full force, and may be enjoyed by said Treadway, and his assigns, for the period of fifteen years; and that during that time no other person, persons, or eorpotion shall, by the consent of the court of common council, lay gas-pipes in said streets.
The original act of incorporation gives the plaintiffs, among other things, authority to purchase of said Treadway his gas-works and gas-business, in the city of Norwich, with all the pipes, machinery, land and buildings connected therewith, and to manufacture and sell gas, and to furnish such quantities thereof as may be required, for lighting the streets and buildings, and for other purposes. It also gives them the right to lay down their gas-pipes, and to erect gas-posts, burners and reflectors in the streets and public grounds of
The defendants have obtained no grant or authority from the general assembly to lay their gas-pipes in the streets or public places of the city or town; but, on their application to the court of common council of the city, that body, on the 26th of March, 1855, without any notice to the plaintiffs, and without revoking, or otherwise noticing its former grant to the plaintiffs, granted the defendants the privilege of laying their gas-pipes &c., in the streets and public places of the city, on certain terms, upon which no question arises.
Upon these facts the question is, whether the plaintiffs have such an exclusive right to the use of the streets and public places in the city of Norwich, for the purpose of laying gas-pipes, and distributing gas therein, as to be entitled to an injunction against the defendants, who are engaged in the same business, and are using the streets for the same purpose.
In the determination of this question, the court will not undertake to define the rights or powers of cities, or other municipal corporations, or of individuals, to make use of the public streets, for the purpose of laying gas-pipes therein, or for other similar purposes, any further than it may become necessary, in order to determine the questions which are involved in the case. The right of the plaintiffs to an injunction, does not depend upon the question whether the defendants have the right to use the streets in the manner
The plaintiffs however are the equitable owners of what is called the Frink lot, and if they have no exclusive right to the use of the streets, under any of these grants, then there will remain only the question, whether they are entitled to enjoin the defendants against laying their pipes in the street, in front of this lot.
1. Have the plaintiffs an exclusive right to the use of the streets as the assignees of Treadway ?
The resolution under which this right is claimed, purports to grant to Treadway and his assigns, for the period of fifteen years, the right to lay gas-pipes in the streets; and it declares that no other person or corporation shall, by consent of the common council, lay gas-pipes in said streets during that time. But the city does not own the streets. They are public highways, like any of the ordinary roads in the state; and although, by the city charter, they may be subject to certain regulations respecting police, side-walks, drainage, and repairs, yet the city, as such, has no interest in the soil. This belongs to the adjoining proprietors, or to other individuals, as in the case of other highways. Nicholson v. N. H. & N Y. R. R. Co., 22 Conn. R., 74. And the right of way over them, being public to all who may have occasion to use them, and the only power of the city over them being given by their charter in order to regulate such use, it seems clear that the city can make no grant which shall convey to the grantee any interest in them, which can,
But if the whole effect of the resolution be merely to license Treadway and his assigns to use the streets, so as to protect them from a prosecution for a public nuisance for digging them up in order to lay down their pipes, it is obvious that it could only operate to protect themselves; and would give them no title by which they would be authorized to restrain the defendants from similar acts, provided those acts did not interfere with the works of the plaintiffs. We think, therefore, the plaintiffs can derive no aid from this act of the authorities of Norwich, in this application.
2. If no exclusive right to the use of the streets was acquired under the resolution of the court of common council, the next question is, whether any such right was acquired, under the plaintiffs’ original charter, either by itself alone, or in connexion with their assignment from Treadway?
The only part of the original charter which can have any bearing upon this question, is the second section. That authorizes the corporation to purchase of Treadway his gasworks and gas-business, with all the pipes, machinery, land, &c., connected therewith, and to make and sell gas, and furnish such quantities of gas as may be required for lighting streets, stores, and other purposes, and to make and enforce contracts in relation thereto, to purchase real and personal estate for the accommodation of their business, and to lay down their gas-pipes, and erect gas-posts, burners, &c., in the streets and public grounds of the city and town of Norwich, and to do all things necessary to light the city and town, and the buildings therein. This is the substance of all there is in the charter on the subject; and we discover nothing in it which can fairly be said to raise a plausible argument in the plaintiffs' favor. So far as any exclusive right to any of these privileges is concerned, we do not see
3. Have the plaintiffs the exclusive right which they claim under the amendment to their charter, passed in 1855 ?
The second section of the amendment provides that “ The right of the Norwich Gas Light Company to lay down gas-pipes, and to erect gas-posts, burners and reflectors, in and through the streets, alleys, lanes, avenues, and public grounds of the city and town of Norwich, and to distribute gas through the same for the purposes of lighting said streets, lanes, alleys, avenues or public grounds, and the stores, dwellings, and other buildings situated thereon, is, and is hereby declared to be exclusive, as against any and all persons or corporations, except such persons or corporations as may hereafter be invested by the general assembly of this state, with power to use said streets, lanes, alleys, avenues, and public grounds, for the same purpose. Providedthat nothing in this act contained, shall prevent any individual, corporation, or society from making or using gas
The defendants do not claim to have procured from the general assembly any authority to use the streets, &c., of the city for the distribution of their gas, and thus to have brought themselves within the exception contained in this section ; and we are thus brought directly to consider, what additional privileges were conferred upon the plaintiffs, by this amendment of their charter. And it cannot be denied that the expressed intention of the section is to make the right of the plaintiffs to use the streets exclusive, for the purpose of distributing gas to light the streets, and buildings situated thereon. The question here, then, must be, whether this provision is one which the legislature could lawfully make, in the form in which it is here attempted to be made ? And however reluctant the court may feel, to be obliged to pass upon a question of this sort, yet, as it cannot be avoided without an entire disregard of duty, the question must be disposed of like any other which it becomes necessary to determine, though with all due respect to the legislative power of the state.
This provision must, w.e think, be taken either to be intended as a declaration and enactment, that the laying of gas-pipes in the streets of the city, for the purpose of distributing gas therein, to light the streets and buildings, should be a public nuisance in all other persons, except the plaintiffs; or to be intended as a grant to the plaintiffs of an exclusive property franchise in the streets, consisting in the right to use them for this purpose. The plaintiffs claim it in both these aspects; and they are necessarily driven thus to make their claim, because, if it be viewed as a mere enactment that the laying of gas-pipes in the streets by any persons other than the plaintiffs shall be unlawful, and amount to a public nuisance, without granting any exclusive right to the plaintiffs to do such acts — that is to say, without granting them some legal interest in the use'of the streets for this purpose other than such as would result from a mere
If the defendants were engaged in an extensive tannery, so located as to be a public nuisance, could the owners of a rival establishment found a right to interfere on behalf of the public and themselves, merely on the ground that their business was less profitable than it would be, if there were no competitors in the market? We presume no one would seriously make such a claim, yet we see no distinction in principle in the cases. In this aspect, then, the plaintiffs must be considered in the light of a person having no other interest in the subject matter than such as is common to the whole public, attempting by the process of injunction, on his application alone, to restrain the defendants from the commission pf a public nuisance. This, it is well settled,
Has then the amendment to the plaintiffs’ charter the effect of conferring on them an exclusive property franchise, in the streets and public places in the city of Norwich, for the purpose of laying pipes through which to distribute gas ? The plaintiffs insist that it has this effect, and they say it confers on them a franchise similar, in all respects, to the franchise which is sometimes granted to a ferry or bridge corporation, prohibiting any other ferry or bridge within certain specified limits.
A franchise is defined by Blaekstone to be a royal privilege or branch of the crown’s prerogative, subsisting in the hands of a subject. Being derived from the government, it is always supposed to have been originally granted by the government. It is property which may be transferred. by sale or devise, and it will descend to heirs like other property; and the owner has the same security for its protection under the constitution, as has the owner of any other property. Enfield Toll Br. Co. v. Hartford & N. Haven R. R. Co., 17 Conn. R., 40.
As this is a species of property derived by grant from the government, it follows, that if the government has no power to make the grant, either because it is contrary to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee. This' grant appears to have been made without any consideration whatever for it. The plaintiffs are under no obligation to make gas, or to suffer the gas which they may make to be used. They are restricted in the price of what they do sell, but there is no provision that they shall sell to all, or to any who may apply for it, or to so many as they may be able to accommodate. In this respect there is a broad distinction between this and the grant of a bridge or ferry franchise. The most valuable interest in bridge and ferry grants is the right to take toll, and this right is never granted unless it is founded on an adequate consideration, which in the case of
Again, it is the duty as well as the prerogative of the government to provide necessary and convenient roads and bridges; and, to enable it to accomplish this object, it has everywhere what is called “the right of eminent domain;” the right over individual estates to resume them for this and other public purposes. Such a prerogative connected with a corresponding duty, with the power to execute it by the exercise of the right of eminent domain, necessarily implies that it belongs to the government to determine what improvements are of sufficient importance to justify the exercise of the right, and when and how it shall be exercised; and if a particular bridge, or ferry, is considered sufficient for a particular locality, it may stipulate, that within such reasonable limits, the particular bridge or ferry tolls shall not be diminished by any other improvement of the sort. But it is no part of the duty of the government to provide the community with lights in their dwellings, any more than it is to provide them with the dwellings themselves, or any of the necessaries o'- luxuries which may be deemed important to the comfort or convenience of the community. And if it be assumed that there would be no impropriety in the lighting of the streets under the control and direction of the sovereign power, this would be merely as a regulation of police, or an incident to the duty to provide safe and convenient ways. And in this case, the power to provide for
While then we are not called upon to question the au
Since this controversy has been pending, the plaintiffs, through the agency of one Caleb B. Rogers, have purchased a lot. of land which has been conveyed to said Rogers, but the plaintiffs, being the equitable owners, are in possession. This lot is so situated on the highway that it is important that the defendants’ main pipe should pass, in the highway, over a portion of it into the city, which being known to the plaintiffs, they purchased the property for the purpose of preventing the defendants from laying their pipes upon, or in it, and thus to prevent them from laying their pipes into the city; yet the defendants, without the consent of the plaintiffs, and against their prohibition, have laid their pipes across that part of said lot which is within the limits of the highway and continue to maintain it there, and avow their intention so to continue it.
Upon these facts we do not think the discretionary power of granting or refusing an injunction ought, under the peculiar circumstances of the case, to be exercised in favor of the plaintiffs, on account of their equitable ownership of this lot. The real, substantial controversy between the parties has been in respect to their rights to use the highways,
Upon the whole ease, therefore, we advise the superior . court to dismiss the bill.
In this opinion the other judges, Storrs and Ellsworth, concurred.
Bill dismissed.