Salem & Hamburgh Turnpike Co. v. Town of Lyme

18 Conn. 451 | Conn. | 1847

Ellswokth, J.

This case, upon the facts stated, and, for the purposes of a trial, admitted by the demurrer, would seem, at first -view, to be one proper for the interposition of a court of equity. But the difficulty is, the plaintiffs have relief, if any they are entitled to, under the 13th section of the “ act relating to highways and bridges.” The new road complained of, is no part of the turnpike road, nor of the exact franchise granted to the turnpike company. Although it is nearly parallel with it, connecting two existing roads, and thus furnishing some facility for avoidingthe toll-gate, it neither begins nor ends on the road, nor passes over any portion of it. It may somewhat, and very greatly, impair the value of the plaintiffs’ franchise, as is the effect in numerous cases, where a parallel new road, canal, or bridge, or a rail-road, is made between the same points, or near them. If the public travel requires new or improved facilities, it is the right,' if not the duty, of public servants to make them, or allow them to be made. This is the well known condition upon which the plaintiffs took their charter; and they cannot complain, if “ common convenience and necessity” require a new road. Who is to settle this question ?

We think that it belongs, first, to the select-men ; if they act, then to the inhabitants of the town in legal meeting assembled ; and finally, to the county court; all and each of whom, it must be presumed, will act intelligently and honestly. The statute vests in them the entire and exclusive power, upon the idea probably, that these domestic tribunals can be most safely and wisely trusted with it.

The select-men of Lyme, and after them, the inhabitants of the town, have found, that this new road is peedful ; and no appeal was taken, as might have been taken, to the county court, for a review. Can we now say, the road is not needful, without assuming a jurisdiction belonging to others 1 Can we try this matter over anew ? Shall it be done by committee, or otherwise ? We think the question has been fully and *457finally settled, whether wisely or unwisely ; and we cannot doubt, if the new road was not “ needful,” the county court, at least, would have set aside the doings of the select-men.

It is true, by the demurrer, the defendants admit a clear nuisance and gross wrong ; but we think the demurrer fairly raises the question of jurisdiction, as in the case of a bill brought on a note of hand, a demurrer would not preclude, but would be a proper mode of raising, the question of jurisdiction.

Since the decision of this court in the case of The Enfield Toll Bridge Company v. The Hartford and New-Haven Railroad Company, 17 Conn. R. 454. and of the supreme court of the United States, in the case of The Charles River Bridge v. The Warren Bridge, 11 Peters 500., and the numerous decisions to the same effect, cited in those cases, we do not think it an open question, whether a new road, canal, or bridge, materially diverting travel or business from an old one under a prior charter, is therefore unconstitutional, or to be suppressed. New facilities for public accommodation must be created as they are needed. The legislature, or subordinate tribunals by the legislature entrusted with the discretion, must judge wisely and fairly on the subject; and here we must leave this discretion. In cases where a line of travel is given in a previous charter; or where the franchise Is defined, or made exclusive ; or where some portion of the exact thing given before, is taken ; it may be, that, by reason of peculiar provisions in a charter, the legislature may be concluded ; or if not, that damages may be assessed, as in other cases where private property is taken for public use. The present case does not belong to this class.

We advise that the bill is insufficient.

In this opinion the other Judges concurred, except Waite, J., who gave no opinion, being an inhabitant of the town of Lyme.

Bill dismissed.