59 A. 491 | Conn. | 1904
The plaintiffs were the owners of land and buildings fronting on North Railroad Avenue, a highway in Bridgeport, upon which premises they conducted the business of selling, at wholesale, grain, groceries, meat and other merchandise. For the purpose of performing the work of removing the grade-crossings in the city of Bridgeport, under a Special Act of the General Assembly passed in 1895, and under the orders of the railroad commissioners, and under the provisions of the agreement between the railroad company and certain representatives of the city of Bridgeport, made by authority of said Special Act, the defendant closed North Railroad Avenue in front of and to the east and west of the plaintiff's property, and built a fence along the north side of said street, which, in front of plaintiffs' store, was just inside of the curbstone, and occupied said closed portion of the street with materials and apparatus suitable for the work which it was performing, and placed thereon two railroad tracks upon which it operated its trains from about December 1st, 1899, until about April 1st, 1901. *433
The complaint describes both the direct damage to the property actually taken, by temporarily imposing the additional servitude of a steam railroad upon that part of the highway of which the plaintiffs owned the fee, subject to the public easement, and the consequential injury to the plaintiffs as owners of the property adjoining the highway by temporarily depriving them of access to it.
The plaintiffs filed a bill of particulars of their extra expense and damage on account of the obstruction of the highway by the railroad during said period, in which their total loss is stated to be $28,070.43.
The notice of defense upon the hearing in damages set forth the facts showing that the occupation of the highway and the use of the additional tracks were necessary acts in the performance of the work required by said resolution of the General Assembly and the agreement entered into under said Act and by the orders of the railroad commissioners.
The trial court found that the value of the plaintiffs' premises was $4,500, and that the rental value during the time the defendant so occupied the street, without reference to the particular use to which the premises were applied by the plaintiffs, was $50 a month, and assessed the plaintiffs' damages at $6,150.64, which was made up of these items: —
Cash paid to Lyon for access to Howard Avenue, $ 450.94
Carting materials for driveway, 15.00
Cash paid . . . for materials and labor, for change in building, 150.00
Cash for extra teams and help during interruption, 2,316.98
Damage to goods by surface water, 971.94
Extra price paid for beef and pork, 2,232.28
Rebuilding gutter destroyed, 13.50 --------- $6,150.64
In the memorandum of decision the trial judge states that this is not an action for the recovery merely of compensation for land taken for a public use, and that the damages are *434 not to be assessed according to the rule applicable to such taking, and that by suffering a default and giving notice under the statute the defendant has treated the action as one in the nature of trespass for a tort.
The rule of damages for injuries unlawfully inflicted by a mere trespasser is somewhat different from that which is applicable to injuries necessarily resulting from the proper performance of an act for the general good of the community. There are some inconveniences, and even losses, which individuals may justly be required to suffer, without specific compensation, for the public welfare, for which, when caused by the unlawful acts of a mere trespasser, damages should be recoverable. Whether the defendant is to be regarded as a forcible trespasser, in thus closing and occupying North Railroad Avenue and placing and using the steam railroad tracks laid upon it, or as engaged in the performance of a public duty imposed by the State, may therefore be an important question in the assessment of damages in this case. 2 Lewis on Eminent Domain (2d Ed.), § 493.
If the present suit is of the nature of the common-law action of trespass, it is because the allegations of the complaint show that by closing a highway in the city of Bridgeport in front of the plaintiffs' land, and laying and operating a railroad upon it, the defendant is liable for the alleged injuries to the plaintiffs' property. The complaint contains no express allegation of an unlawful, or wrongful, or forcible entry, as in the case of McKeon v. New York, N. H. H.R. Co.,
But if the complaint in effect charges the defendant with having unlawfully so closed and used the highway, the admission by the default did not prevent the defendant from disproving such allegation upon the hearing in damages, nor from alleging in its notice, and proving, facts showing that it was lawfully acting in obedience to a command of the State, and was therefore only liable for such damages as were required to be paid for lawfully taking private property for a public use. The facts showing in what capacity and by what authority and in what manner the defendant acted, were alleged in the notice and found by the court. These facts show that the defendant performed these acts "with due care, with entire honesty and sound discretion," and by authority of and in the manner required by an Act of the General Assembly; and that it cannot be regarded as a trespasser, unless it be for the reason that it does not appear that the defendant caused the plaintiffs' damages to be appraised and paid before the highway was thus occupied.
That the lawful and proper location and operation by the defendant of a steam railroad upon North Railroad Avenue in prosecuting, at the command of the State, the work of removing the grade-crossings in Bridgeport, was such a taking of land as rendered the defendant liable to abutting proprietors owning a fee in the highway, both for the injury to the land actually taken within the limits of the highway, and for the resulting injury to the owner of the land adjoining the highway not actually taken, but to and from which such abutting owners were thus deprived of access, was decided in the cases of McKeon v. New York, *436 N. H. H.R. Co.,
If the Act of 1895, and the agreement under it, both of which are given in full in the case of Mooney v. Clark,
By the Act of 1895, and the agreement referred to, the duty and expense of removing the grade-crossings in Bridgeport were imposed by the State upon the defendant railroad company and the city of Bridgeport. Concerning that Act and agreement this court said, in Mooney v. Clark,
Manifestly, this duty was thus placed upon these two corporations because the powers, duties and liabilities granted and imposed upon them respectively by their charters concerning the construction and operation of railroads, and the opening, repairing and discontinuing of streets, and the payment of damages to persons whose property might thereby be taken or injured, rendered them the most suitable agencies for the performance of this work. The charter of each corporation authorized it to take land for public purposes, made it liable to pay damages arising to persons whose property was so taken, and provided for the appraisal and prepayment of such damages. In behalf of both these corporations the railroad company was required by the terms of the agreement to do the work of construction, grading of tracks and streets, etc., both upon its own land and upon the highways affected by the plans, and was given the full use of, and the right to temporarily close, such streets or portions of streets as might be necessary for the convenient prosecution of the work.
The Act of 1895 itself provides for the taking, by the railroad company or the city, of land or any interest therein deemed necessary for the carrying out of the work in any and all particulars, in the manner provided by statute for the taking of land for railroad purposes, and the provision in the agreement for the payment of the cost of the entire work expressly includes damage for the taking of land, and all damage to property resulting from a discontinuance of streets or parts of streets; but neither the resolution nor *438 the agreement contain any express provision for the prepayment of the damages which might result to adjoining landowners from such temporary taking of a highway for railroad purposes as might be found necessary in the prosecution of said work.
It is evident that the real injuries complained of in this action are those resulting from depriving the plaintiffs of their right of access to the adjoining land (which to the extent that the street was a necessary and convenient means of access to his lot was as much a valuable property right as the lot itself. Indiana, B. W. Ry. Co. v. Eberle,
Our Constitution does not expressly provide for the prepayment of the compensation for land taken for a public use. Whether under it the legislature may authorize the taking of land for a public use without the prepayment of compensation for the permanent consequential injuries arising therefrom to the owners of adjoining land, is a question which has been raised in several cases in this State, but not decided. Hooker v. New Haven N. Co.,
It is admitted in plaintiffs' brief that the damages they seek to recover are such that they could not have been ascertained and appraised beforehand upon condemnation proceedings. While the purposes of this case do not require us to hold that it was within the power of the legislature to authorize this work to be performed by these agents without prepaying that damage for which they were to be held liable, resulting from such temporary occupancy of highways by a railroad as might be found necessary in prosecuting the work, we are clearly of the opinion that such occupancy of North Railroad Avenue, without a pre-appraisal and payment of such damages, does not render the defendant such a forcible trespasser that it is to be subjected to any greater liability in damages in this action than it would have been had the damages been appraised and paid before the street was so occupied.
The rule of damages to be applied in this case is the same as that which would have governed in an appraisal of the damages in condemnation proceedings; just compensation for the injuries. Nicholson v. New York N. H.R. Co.,
These cases show that it is the purpose of the law that the owner of property adjoining a highway taken or occupied for a public use, shall receive just compensation, not only for his property actually taken or occupied in the highway, but also for the injuries, if any, to his property adjoining the highway, which are the natural and proximate consequences of such taking or occupation; and that the diminution in value of the property taken or injured, to be included in the damages, is to be determined by considering everything by which such value is legitimately affected.
The rule of damages applied in these cases, and in most of those cited by counsel, was the rule applicable to a taking or injury which is or may be permanent, and was applied in actions to recover either full compensation for such permanent injury, or compensation up to the time of the commencement of the action, for a continuing injury. For the injury to land in such cases, the diminution in market value is generally the rule of damages applied, because it is generally a fair measure of the loss sustained, whether the owner is compelled to abandon the injured property, or to use it in its impaired condition, or to restore it to its former condition.
In the present case both the taking and the injury were temporary, and it was understood they would be when the street was first closed, and the occupation of the highway and the injury occasioned thereby had ceased before suit was commenced; and, it may be added, the liability of the defendant is not limited to the payment of damages to realty, the language of its charter being that it shall "pay all damages that may arise to any person or persons," and that the damages to be assessed are "just damages to the person or *442
person whose real estate shall be taken or injured." If the plaintiffs had used these premises merely as a place of residence or for the purpose of renting them, their loss as owners of property so used or rented would probably be fairly measured by the market rental value, or the diminution in such rental value, during the time they were so deprived of access. But where premises are used for manufacturing or business purposes and have been constructed for or adapted to such use, and for that purpose have been furnished with expensive fixtures, machinery and appliances, and a permanent and profitable business has been established at that place, compensation for the diminution in the market value of the premises, or in the mere rental value during the period of interrupted access, is not just compensation for the injury caused by temporarily depriving the owner of the right of access. When the owner is making such a use of the land, it is that use of which he is temporarily deprived, and for the loss of or injury to which he is entitled to compensation.St. Louis, V. T. H.R. Co. v. Capps,
In determining the diminution of such value the court should consider the reasonably necessary loss to the plaintiffs in their said business, caused by such interruption of access, including actual loss of trade and loss of profits necessarily caused thereby, and the reasonably necessary additional labor and expense required to prevent further such loss. Norwalk
v. Blanchard,
In addition to the diminution in value of the use of the premises, the plaintiffs are entitled to compensation for such damages to their premises and to their goods, and necessary expense incurred in saving them from further damage, not included in the diminution in the value of the use of the premises, as may be proved to have been caused by the defendant's *444 acts, and which they could not have avoided by the use of reasonable care and forethought.
The view we have taken of this case renders a new trial necessary.
There is error and a new trial is granted.
In this opinion the other judges concurred.