27 Conn. 146 | Conn. | 1858
Lead Opinion
From the petition for the writ of mandamus, as well as from the finding of the court, it appears that a certain part of the defendants railroad, (about one mile in length,) has been laid upon the traveled path of a public highway, and that it has been legally laid and established there under and in conformity to the defendants’ charter, and under the authority and with the approval of the commissioners appointed by the state. No question whatever is made as to the manner in which it has been done, nor but that the charter is broad enough to render proper what has been done, at least in the first instance. Immediately upon this proceeding, the defendants procured the laying out of a new strip of road for public travel, to make good the mile they had taken for the railroad, on the other side of the gorge, a little west of the railroad track, and submitted their survey to the commissioners, but the latter disapproved of this location and rejected it, and themselves suggested a place for the new road which they would be willing to accept. The defendants adopted the route thus advised, and the new piece of road was laid out and established there, and no other highway has been made to supply the place of the mile taken by the defendants.
It was claimed by the defendants that these proceedings were virtually a discontinuance of that mile of highway, since it could be no longer used ; and that the new road was the legal substitute therefor, though it lay somewhat farther west; that the commissioners, finding it could not be made any nearer, as two roads could not be made in the gorge, had a right to select a new path, though that path had been for a long time used as a part of another and distinct highway; and further that the defendants could do nothing more or different from what they had done, as the commissioners possessed exclusive and final power, and had peremptorily declined to take any further action in the premises.
The superior court was of opinion that so much of the old highway as had been taken as aforesaid was effectually discontinued and not merely changed or altered, so that what purported to be a change or alteration was not of that char
This order we think can not be sustained; and this for several reasons. The mile of the old highway taken, became, as is agreed, a part of the established railroad track; and this was done by the legislature itself; for it was done by the commissioners who represented the legislature. There is nothing objectionable in this act,—no invasion of right or property,—no unauthorized assumption of power. What was done was authorized by the'charter, and directed under it by the agents of the government as necessary for the public safety, and when executed was obligatory and irrevocable save by the government itself. Indeed it was authorized by the same sovereign power under which the old highway was established and continued. Morris & Essex R. R. Co. v. Newark, 2 Stock. Cha. R,., 360.
In the next place, the commissioners would not consent to have the new strip of road made in the gorge.' This they forbade, and directed where it should be made and what should constitute the alteration of the part of the old highway discontinued; and having done this, there being no fraud, (and none is pretended,) we think the doings of the commissioners are conclusive on the company, and that they can not now locate the new path anywhere else. Here they have put it by authority, and here it must remain; and if we might judge of the expediency of the act, we should concur with the commissioners in the wisdom of the course pursued by them. But we ask, what can the company do ? After establishing their railroad track in the gorge, they applied to the commissioners for liberty to attempt to build a new highway on the west side of the brook, but the commissioners forbade it, and commanded them to go farther west out of the gorge, and they obeyed. Can they now go within the gorge, allowing it to be physically possible to make a second road there ? We think not, and, under the circumstances, that it is no proper subject for a mandamus by the superior court. The court had no jurisdiction over the commissioners, to pronounce upon their judgment or
But further, the defendants have no power or right, as matters stand, to make a new highway in the gorge. They will become trespassers if they enter upon any man’s land for such a purpose; so will be every person who is willing to peril his safety by traveling upon such a road; and an order 'of the court, will furnish no defense for the trespasser. The commissioners only, we repeat, can authorize such acts, and if they will not allow them, there is no help for it by any ordinary process of the law known to this court.
It is again said that the new piece of road is outside of the gorge and is longer and more circuitous than the road covered by the railroad. But the commissioners say this is the best and only practicable alteration in their judgment, and how much west it is, or how direct or indirect it is, does not appear, nor how much longer. Nor, as matter of law, could these things govern us if they did appear.
Let me inquire what is expected to be done in carrying out this mandamus, if it is to stand in the absolute form in which the judgment is rendered. The language is “ to restore and repair the old highway as prayed for.” Are the defendants to go and take up their road throughout the entire mile, and reconstruct the old path, and thus ruin their entire enterprise ? And what else can they now do ? Is this really expected of the defendants ? And is the superior court peremptorily to order it done, in its discretion, to accommodate a small neighborhood, possibly by a shorter road to the grist-mill or the grocery? We can not think this wise or proper; and yet we see not any other result, since no alteration of the highway is practicable within the gorge, and the commissioners will not allow of any therein. Had the superior court directed where and in what manner its judgment should be carried into effect, it would perhaps have
If any body should be reached and forced to obey a peremptory mandamus here, it should be the commissioners. They should be cited in, at least, and put under oath ; when we do not doubt they could satisfy the petitioners and the court, that the public safety and convenience required them to pursue the very course they have pursued.
Again, it is said that the alteration prescribed is not a legal one, because the commissioners adopted part of an existing road. Wherein consists the objection ? Suppose the road taken by way of alteration lay near the west bank of the brook, in the gorge instead of out of it, and to take it was the best and only thing which could be done to meet the wants of this line of travel, could not the commissioners make that alteration, even although the old highway is at the place virtually and necessarily rendered impassable ? Every highway that is taken for the railroad track by the order of the legislature or its commissioners is pro hac vice discontinued, else we put upon the statute a very narrow and technical construction, one calculated to embarrass the whole matter, for then not a foot of any highway could be taken without a formal discontinuance of the old highway by some public authority. We know that the universal practice is quite otherwise. Highways, to a greater or less extent, have been taken by every railroad company in the state without any other or more formal discontinuance than in this case. Two modes of travel are needed through this gorge, but one only can be continued: Which shall it be ? The legislature have decided the question by their commissioners in favor of these defendants, and we see no reason to interfere, under the circumstances, even if we had the power, which we think we have not.
We think there is error, and that the judgment below must be reversed.
In this opinion Storrs, C. J., concurred.
Dissenting Opinion
dissented. He thought the discontinuance of a portion of the Hancock Brook road, which the finding showed to have been laid out by the county court as necessary long after all the other roads by means of which, in a circuitous route, a traveler might pass from one of its termini to the other, and the attempted substitution of other long established roads, together with a larger portion of the Waterbury river turnpike than the whole extent of the discontinued highway, a clear evasion of the provisions of the general statute and of the defendants’ charter, which require that when they alter or in any way interfere with a highway they shall restore it to its former usefulness. He considered the discontinuance of about a mile, in the centre of a short highway of only two miles length, which was established for the purpose of shortening the distance between its termini, and assuming to direct the travel, which was accommodated by it, over the old circuitous highways, to avoid the necessity of traveling over which the discontinued highway was ordered to be built, a mere endeavor, under the pretence of re-surveying and re-establishing old highways, which the finding says had immemorially been open to, and used by the public, to save to the defendants the $2,000 or $2,500, which it would cost to restore the discontinued highway;— and that the power to do this involved the power to discontinue almost any portion of any highway which the defendants might have occasion to alter for the purposes of their railroad, as there were probably but few if any highways upon their route that were so situated that different points upon them might not be reached by passing circuitously over other highways in the vicinity without passing directly from one point to the other on the same highway. He considered that the defendants bad in effect discontinued the middle portion of what the finding says “ was a distinct, specific public highway, with well known termini,” and that they had substituted nothing in its place ; and thought it obvious that no legislature would intentionally confer any such power on any railroad corporation ; and that they had not in fact given any such power to the defendants here, either directly or through
Judgment reversed.
