Town of Suffield v. Hathaway

44 Conn. 521 | Conn. | 1877

Pardee, J.

In Woodruff v. Neal, 28 Conn., 167, Storrs, C. J., said as follows: “It is well established in this state, in conformity with the principles of the common law, that a highway is simply an easement or servitude, conferring upon the public only the right of passing over the land on which it is laid out, and as an incident of such right that of using the soil and the materials upon it in a reasonable manner for the purpose of making and repairing it. The title of the owner of the land is not extinguished, but is simply so qualified that it can only be enjoyed subject to the easement. He retains the fee and all rights of property in the land not.’ incompatible with the public enjoyment of the right of way, and whenever the highway is abandoned or lost, the entire, exclusive and unincumbered enjoyment reverts to him. Subject to this right of the public he may take trees growing upon the land, occupy mines, sink water-courses under it, and' generally has a right to every use and profit which, can be derived from it consistent with the easement, and when dis-seized (as he may be) can maintain ejectment, and recover possession subject to the easement, and can also maintain trespass for any act done to the land not necessary for the enjoyment of the easement, which would be an actionable injury if the land was not covered by a highway.” In Jackson v. Hathaway, 15 Johnson’s Reports, 447, the Supreme Court of New York said as follows: “When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, for every, purpose not incompatible with the public right of way.”

Upon tlie other hand, inasmuch as the law places upon towns the duty of constructing and repairing all necessary highways within their respective limits, it is the corresponding right of the officers representing towns in this behalf to dispose of water flowing from springs upon a public way, by such methods as will in their judgment most economically and completely establish its safety. So long as they confine themselves to this single, overruling purpose, courts will not, as a rule, attempt to control or even interfere with them in the exercise of their discretion as to the manner in which they will effect this result; but this supremacy does not extend beyond this one point. In the case before us, as between the public and the respondent, the owner of the spring, the latter is entitled to any and all uses of it which do not interfere with the public safety, do not obstruct or hinder public travel, and do not increase the public burden of making repairs. If therefore the officers can at the same cost make and keep the way equally safe and convenient, and still allow the water to flow from the spring over and upon the land of the owner of it, it is their duty so to do. The right of the owner to the use of the spring under these limitations takes precedence of the right of the officers to divert it to the lands of others, if in so doing their sole motive is to establish a public watering place. Of course, such places afford great relief to man and beast; but, commendable as is the act of establishing them, towns have no right to take private property without compensation for that purpose.

In passing upon the question of evidence made in the court below, we must distinguish an enquiry as to purposes from one as to methods. We think the court had a right to enquire as to the purpose for which the selectmen diverted the flowing water from the owner. If that purpose should prove to be simply drainage for public safety, the court would ordinarily refrain from enquiring as to the methods by which it had been effected; but, if the purpose should prove to he solely to supply a watering trough, then the court, leaving aside the entire question as to methods, might enquire whether in so doing they had destroyed any private right. It is not true that every act done by officers within the limits of the way is beyond the reach of judicial investigation; if it is done in the line of governmental duty, solely to secure the proper' degree of safety to the traveler, they are entitled to immunity; if beyond this line, they are not necessarily. The court having found that the works removed by the respondent were useful only for the purpose of collecting the water from the spring and diverting it from her for the supply of a public watering-trough, this ceases to be a question as to when, if' ever, a court will interfere with selectmen in the exercise of their discretion in repairing ways. They had ceased to act for that purpose; had ceased to provide for public safety; had become ministers to the public comfort. In this last capacity, as against this respondent, they had no power to act at all; therefore we think there is no place for a discussion as to their mode of action-.

There is no error in the judgment complained of.

In this opinion the other judges concurred.