86 A. 23 | Conn. | 1913
The plaintiff, upon the facts alleged in the complaint, is the owner of land bounded on one side by the right of way of the defendant, and abutting in front upon a public highway. This highway formerly crossed the defendant's tracks at grade, and extended each way therefrom some two hundred and fifty feet to a connection with another street. By means of this connection access to and egress from the plaintiff's land in either direction by means of the system of streets in that locality was afforded. The action of the defendant *564 of which the plaintiff complains has not resulted in closing, obstructing, or impairing for use the highway adjacent to his premises. Neither the grade, character, nor serviceability of the street at that point has been affected. Access to and egress from his land can be had as freely as ever. The sole ground upon which he rests his claim for recovery is that highway access has been rendered more inconvenient than it was, in that a more circuitous route must be taken in approaching or leaving the property in one direction.
This changed condition has arisen, it is charged, by reason of the execution of a public improvement whereby the defendant, acting under and in conformity with an order of the railroad commissioners directing and defining the work, has abolished the grade-crossing described, and prevented passage across, over, or under the defendant's tracks in the line of the street upon which the plaintiff's property abuts.
The situation presented is thus in all essentials like that before this court in Newton v. New York, N. H. H.R. Co.,
It is unnecessary to repeat the reasoning of the *565 Newton case. Its conclusion is the natural and logical consequence of the recognized relation of the sovereign, as representing the interests of society at large, to all private-property ownership. It is a part of the price paid for the social compact of organized society, that the public has reserved to it certain dominant rights over all individual property. Hollister v. Union Co.,
The doctrine of the Newton case was reaffirmed in the recent case last cited. But it is claimed that this later case gives recognition to exceptional conditions which may call for exceptional treatment, and that it found such a condition in the circumstances presented by the improvement then under consideration. That is true. But the situation in which the plaintiff here is placed is in no true sense analogous to that in which the Yacht Club found itself after the highway changes affecting its property were completed. Access to the highway in front and in one side direction was entirely taken away from it, and only an apology of a means of approach through a narrow passage inadequate for ordinary modern travel leading in the opposite side direction was left it. We characterized the changes thus wrought as most unusual ones, and in view of *566 their character determined that they called for exceptional treatment in the interest of justice. In this connection it should be borne in mind that these changes deprived the property-owner of all means of direct access in front to the main highway, and thus worked an injury to the easement of access the effect of which is discussed in the Newton case. p. 427 et seq. The true analogy to the present situation, and a most striking one in the similarity of conditions, is to be found in the last named case, and the rule to be applied is the one of general application there stated.
Statutes and constitutions may, of course, create a liability for public action where no liability would otherwise exist. The statute under which the improvement in question was ordered and executed (§ 3713), directs that the damages suffered by reason of the taking of land, or by a change of highway grade affecting premises adjoining the highway, shall be paid for. There was no change of grade in the present case; and no property was taken. Injury such as the plaintiff claims to have suffered does not amount to a taking. Dickerman v. New York, N. H. H.R.Co.,
The complaint originally contained two counts. The second was stricken out upon motion as being merely a repetition of the first, or its repetition with the addition of irrelevant and immaterial matter. This action was erroneous. It is apparent that in the count thus expunged the pleader was attempting to set up a cause of action based upon a contractual obligation on the *567
part of the defendant to pay the amount of the damage he would sustain by the execution of the improvement, voluntarily assumed by it upon the occasion of the hearing before the railroad commissioners, and supported by the consideration that he would withdraw his opposition to the plan and specifications therefor then proposed by the defendant. The allegations as made might not have stood the test of a demurrer, but a motion to expunge was not the proper pleading to call for a determination of that matter. A motion to expunge may not be used to test the legal sufficiency of a pleading. Whitney v. Cady,
The plaintiff subsequently asked leave to file an amended count in which a promise of the character stated by the defendant and withdrawal of opposition in reliance upon it by the plaintiff were alleged. Leave was denied, and the case proceeded upon the first count. The reason for the disallowance of the amendment does not appear. Ordinarily the allowance of an amendment rests in the sound discretion of the court. But whatever consideration may have dictated the refusal of this amendment, the result of the court's action in the two matters referred to was to summarily deprive the plaintiff of his right to present his claimed cause of action to be judicially passed upon either upon demurrer or after issues joined.
Complaint is made of an order of court requiring the plaintiff to annex a copy of the order of the railroad commissioners to the complaint. This was a matter within the discretion of the court, and, besides, could have worked no harm.
There is error, and the cause is remanded with direction that the plaintiff be permitted to amend his complaint by incorporating a second count based upon a contractual obligation assumed by the defendant to
