27 Conn. 641 | Conn. | 1858
The defendant in this case, admitting that he erected the obstructions complained of, seeks to justify the act as the absolute owner of the land on which they were placed, and claims that the resolutions of the General Assembly of 1851 and 1853, in so far as they purport to authorize the continuance of the road as a public highway
What reason existed for the passing of the act of 1853 is not very apparent, but is unimportant, because, in regard to the question before us, the two acts are substantially the same.
Other questions, subordinate to the one alluded to, seem to have been made upon the trial and are presented on the record, but, as they have not been insisted upon in this court, we pass them with the remark, that we see no reason to dissent from the opinion expressed by the judge upon the trial regarding them.
Ttis too obvious to require the remark, that it never was the intention of the legislature, by the act of 1851, or that of 1853, first to discontinue the turnpike road and extinguish the easement, and then to create a new highway in its stead. All the provisions of each of these acts, respectively, were intended to go into operation at the same instant of time— exonerating the corporation from a liability which, at the same, instant, devolved upon the towns, to maintain the road ; the existence of the easement remaining unaffected by the change. So that the question is one regarding the real character of the easement created when the turnpike road was established, and the power of the legislature in this way to provide for its continuance and support.
The power of the legislature, or of any court or other authority known to our institutions, to establish roads for public use over the lands of individuals without providing for them adequate compensation, has not been and can not be successfully claimed. The people, in whom the sovereign power resides, have not delegated such authority or power, but, on the contrary, have in express terms prohibited its exercise. Constitution of Conn., Art. 1, § H, And while, on the one hand, the due and legal establishment of a turnpike road, under the charter of the Hop River Turnpike Company, has not been denied by the defendant, so on
A road constructed and supported by a turnpike corporation differs in no essential characteristic from a common highway, established and supported by a town, a borough, or a city. Their origin and objects are identical. Both emanate from the same supreme power, acting through the legislature, the courts, or other depositaries of authority designated by the laws. Both are called into existence, and supported, to subserve, in exactly the same way, the public necessities and convenience, and both alike are intended to endure for an indefinite period, and so long as that convenience requires or that necessity exists. The funds for making and repairing them, indeed, are drawn from different sources and in different modes—the one, from travelers by atoll—the other, from the community by a tax; and the turnpike company is permitted to take, for the benefit of its stockholders, the contingent profits in compensation for the contingent losses of the enterprise; but still the public interest in the road and the burden upon the land are essentially the same in both. And hence, the charters of most of the turnpike companiesfin the state provide, as in the case of the Hop River Turnpike Company, that the road shall be laid out only after it shall have been ascertained upon inquiry, and decided, that public convenience and necessity require such road ; and that, after the cost of making and keeping the road in repair, with interest at a rate prescribed, shall have been reimbursed to the turnpike company,‘not, that the
Private statutes like those under consideration, affecting the interests of many towns and great numbers of individuals, have from year to year been enacted by the legislature, the constitutionality of which has never, until now, been questioned in our courts. 4 Priv. Acts, 1288, et seq. It is true, that neither the practice of the legislature nor the acquiescence of the people, however long or uniform, can give validity to a private or a public statute which is repugnant to any of the provisions of the constitution, and in a clear case of such repugnancy this court will never hesitate to declare such statute void. But such practice and acquiescence may well admonish us to examine well the ground we stand upon, when by such determination we are to come in
Similar views in relation to this subject seem to be entertained by the supreme court in Massachusetts. Thus, in The Commonwealth v. Wilkinson, 16 Pick., 175, Ch. J. Shaw says: “ We think a turnpike road is a public highway, established by public authority, and is to be regarded as a public easement. The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by the public authority, and made at the expense of individuals in the first instance, and the cost of construction and maintenance is reimbursed by a toll levied by public authority for the purpose.”
Again, in Murray v. Berkshire County Commissioners, 12 Met., 458, the same learned judge says: “A turnpike road is a public highway, which all the people have a right to use, and which no one has a right to obstruct, not even the corporation that built it, except so far as they are expressly authorized by law to do so in order to secure the tolls granted them. ” "On no other ground would the legislature be justified in exercising the public right of eminent domain, by authorizing the taking of private property for laying out a turnpike.
It was said by the counsel for the defendant, that in the case of Murray v. Berkshire County Commissioners, supra, the court recognized the idea that damages may accrue to the land owner by the conversion of a turnpike road into a common highway; and it is true that the legislature of Massachusetts, in the enactment of a general law authorizing such conversion in the mode specified in the act, provides that, in the assessment of damages, there shall be allowed to persons injured by such change, such damages as they would be justly entitled to receive, beyond the damages that would have been sustained by the same persons by the continuance of the road as a turnpike road, and no more; and the Chief Justice, in the ease last mentioned, remarks that in general such change will occasion no damage to the private owner,
In the case before us, the way was an easement belonging to the public, for whose use it was created, and the privilege of collecting tolls upon it a franchise vested in the turnpike corporation. The resumption of the franchise by the sovereign power, left the easement disburdened of the tolls, but otherwise unaffected, and, in the language of the resolutions, “ to be and remain partof the public highway in the respective towns in which it -is situated, to be maintained and treated in all respects as public convenience and necessity require, in the same manner as though said road had been originally laid out and made by said towns,” &c. For this easement, originally contemplated as perpetual, and estimated accordingly, the land owners must be presumed to have received their compensation at the time the road was laid. The claim of the defendant, therefore, for further compensation, has no foundation either in justice or in law.
Of the constitutional power of the legislature to pass the resolutions under consideration, we entertain no doubt.
The adjudications cited by the counsel, regarding the right of railroad companies to locate their roads on highways without making compensation to the owners of the land, are inapplicable to the case before us, because of the obvious and essential difference between a railway and a turnpike or
We do not advise a new trial.
In this opinion the other judges concurred.
New trial not advised.