Woodruff v. Catlin

| Conn. | Nov 23, 1886

Pardee, J.

These are two cases, argued together, of proceedings for the condemnation of land for railway and highway uses.

The New York, New Haven & Hartford Railroad and the New York & New England Railroad cross Asylum Street, a much used highway in the city of Hartford, at grade.

In 1885 the legislature of this state passed the following resolution:—“ That a resolution of the General Assembly, approved April 4th, 1884, providing for a bridge at the railroad crossing at Asylum Street, Hartford, be amended by inserting in section one, in the fifth line, after the word ‘ railroads,’ the words ‘ or for the carrying of said tracks, and structure therefor, over said Asylum Street,’ and in section four, in the thirteenth line, by adding, after the word ‘ order,’ the words ‘ the carrying of said tracks, and strueture therefor, over said Asylum Street,’ so that said sections, as amended, shall read as follows:—

“ Sec. 1. The city of Hartford, the New York, New Haven & Hartford Railroad Company, and the New York & New England Railroad Company, shall construct a bridge, or other suitable structure, with proper approaches, so as to carry Asylum Street, in said city of Hartford, over the tracks of said railroads, or for the carrying of said tracks and structure therefor over said Asylum Street, at .or near their present intersection with said street.

“ See. 4. If said city and said railroad companies shall not, within said period of three months, agree as aforesaid, and submit their said agreement in writing to the railroad commissioners, and obtain their approval thereto, then the railroad commissioners, Morgan G. Bulkley, and Henry C. Robinson, both of said Hartford, who are hereby constituted and appointed a board of commissioners for the state for said purpose, are empowered and instructed to decide what changes shall be made in the manner in which and the place where, in the present line of said Asylum Street, the tracks of said railroads cross the street, in order to abolish the present grade-crossing and insure the safety of the public thereat, and to determine by whom, and within what time, said changes shall be made. Said commissioners are hereby authorized to order the carrying of said tracks, and structure therefor, over said Asylum Street, and direct such a change in the grade of said street in its present line and direction as they judge necessary and proper to the end aforesaid, and to order said railroad companies, or either of them, or the receiver or other person or persons operating either of said railroads, to lay out, construct, and maintain a new line or lines of railroad for a distance not exceeding one half mile each side of said street, and within three hundred feet of the center line of the present tracks of said railroads, and may require any or all of the present tracks within said limits to be taken up and removed. Said commissioners are hereby authorized and empowered to order and direct a- new highway to be laid out across said railroads, and for such distance on either side thereof as they may direct, in place of or in addition to said Asylum Street. Said commissioners are empowered to make any and all orders relating to said improvement, and to all matters and things appertaining thereto, which they may deem necessary and proper, in the same manner and to the same extent as this General Assembly might do and direct; and they may direct by whom, when and how the work shall be performed, and who shall pay for the same, and what proportion of the entire expense, including land damages, each party shall pay and bear; and they may, in the event of any disagreement between the parties, determine the cost of the whole or any portion of the works, and make any and all orders as to the manner and amounts of payments which they may judge reasonable; provided, however, that in no event shall said city of Hartford be required to pay any portion of the cost of any changes in the present depot, or of the construction of any new depot, and. not exceeding one half of all the other expenses, including land damages, incurred under this resolution.”

In 1886 the legislature passed the following additional resolution:—

“ Resolution conferring additional power upon the board of commissioners upon the railroad crossing at Asyluin Street, Hartford.

“ Upon the report of the board of commissioners, raised by the provisions of a resolution providing for a bridge at the railroad crossing at Asylum Street, Hartford, passed at the January session, A. d. 1884, it appearing that said board has, in compliance with the terms of said resolution, approved and adopted a plan for said improvement; that it is necessary in the prosecution of said plan to acquire for the purposes of the improvement various pieces of property now owned by sundry parties; that a portion of said property, will in all probability have to be condemned and taken by process of law; and that such property can be most expeditiously, conveniently, and economically condemned and taken under proceedings instituted by said board in its own name:—Be it resolved:—

“ Sec. 1. That ¡said board of commissioners is hereby, in addition to the powers already conferred upon it, authorized and empowered to institute and prosecute in its own name, but for the use and benefit of the several parties to said improvement, as the case may be, proceedings for the taking of, and appraisal of damages for, any land or other property, including any already appropriated for railroad or highway purposes, which in its judgment may he necessary or proper to be taken for the purposes of the improvement which has been or may be ordered by said board under authority of said resolution. The proceedings for appraising damages to persons whose property is condemned shall be in the same manner and form as those prescribed bylaw for appraising damages for taking land for railroad purposes, excepting as modified by this resolution. The approval of any plan or adoption of any vote or order which contemplates, necessitates or directs the use of any property not already owned or appropriated by the party, in the judgment of the board, needing the same for the purposes of the improvement, shall be a sufficient condemnation of such property to the purposes and uses of the several parties needing the same, and sufficient evidence that the same is taken for purposes of public convenience and necessity, and shall fully justify the appointment of appraisers to estimate damages, and their appraisal as aforesaid. All property taken under said proceedings shall be deemed to be taken by the party for whose benefit the proceedings are had, and upon their completion and the payment of the damages appraised, the right, title and interest so taken shall, by virtue of said proceedings, vest immediately and directly in the party for whose benefit and uses said condemnation is made as aforesaid, in the same manner and to the same extent as though said proceedings had been lawfully begun and prosecuted by and in the name of such party.

“ See. 2. The appraisal of damages made upon any proceedings as aforesaid shall, when it has been made, returned and recorded, have the effect of a judgment, and execution may issue at the end of sixty days from the time when such return is made, in favor of the party to whom damages may be appraised, and against the party for whose use and benefit the property appraised is appropriated.

“ See. 8. When any payments have been or are to be made for property taken as aforesaid, said board of commissioners may make any order which it may deem proper, directing any party to said improvement to contribute to any other party such sum or sums as it may fix and determine, to apply towards said payments.

“Sec. 4. Said board may incur any expenses which it shall judge proper to the performance of their duties under said resolution, and to the wise and economical construction of said improvement, and any expenses so incurred shall be borne and paid by the parties to said improvement, in such proportions as said board may order.

“ Sec. 5. The decision or action of said board, had by a majority thereof, shall, in all matters appertaining to their duties under said resolution and the amendments thereto, be regarded as the decision and action of said board, and as such shall have full force and authority.

“ Sec. 6. This resolution shaU not be construed as modifying or limiting the powers of said board in any respect as they have heretofore existed, save as expressly provided herein.”

The commissioners therein named have instituted a proceeding for the condemnation of two pieces of land owned by Julius Catlin—one for the use of the New York, New Haven & Hartford Railroad Company, and the other for the use of the New York & New England Railroad Company; also a proceeding for the condemnation of two pieces of land belonging to Mary Graham—one for the use of the New York & New England Railroad Company, and the other for the use of the city of Hartford for a new highway.

To the petition of the commissioners for the appointment of appraisers Mr. Catlin and Mrs. Graham filed demurrers. The grounds of demurrer in the case of Mr. Catlin are as follows:—

“ That the said acts of the legislature, under which said proceedings are commenced, are illegal and void:—

“ 1. Because the legislature has not the power to oblige the city of Hartford to pay for lands taken by the said railroad companies for railroad purposes, or for expenses incurred by said companies in changing their grades, or other similar work, as the same is contrary to the twenty-fifth amendment to the constitution of this state, and also to the fourteenth, amendment to the constitution of the United States, and the eleventh section of the bill of rights of the constitution of this state.

“ 2. Because if the legislature has such power, it cannot delegate such power to the persons appointed commissioners.

“ 3. Because the legislature cannot delegate to said commissioners the power proposed to be given to them by said act, to decide what plan shall be adopted for a bridge, or what lands shall be taken for said railroads, and what amount the city shall pay therefor, without the consent of the said city.

“ 4. No sufficient provision is made for the payment of any damages which may be assessed for the taking of the land to be taken, or how much shall be paid by said railroad, or the city, or which one shall pay for the same.

“5. There is in said resolutions no provision obliging said railroad companies to take the lands hereby proposed to be taken and to lay their tracks thereon, or to pay for the same, except so far as it is provided that it shall have the effect of a judgment; but it does not provide that it shall be a judgment of any court, or that any court or other authority may issue execution; so that said provision is inoperative, and no other provision for payment is made.

“ 6. That a judgment against the New York & New England Railroad Company would be valueless, as said corporation has no property in this state, not unincumbered, upon which an execution could be levied.”

The grounds of the demurrer in the case of Mrs. Graham are stated as follows:—

“ The respondent Mary Graham demurs to the sufficiency of this application, because:—

“ 1. The resolution providing for a bridge at the railroad crossing at Asylum Street, Hartford, passed by the General Assembly at its January session, 1884, together with each and all of the acts or resolutions subsequently passed amendatory thereto, is unconstitutional and void, for the following reasons:—

“ (a) Said resolutions provide, inter alia, for the taking of land for railroad purposes, the title to which shall vest in certain railroad corporations; and that the city of Hartford shall pay to said railroad companies a portion of the damages appraised for said land, so taken by them, and of the expenses and charges connected with the changing of the railroad tracks from their present location, all of which is contrary to the provisions of the twenty-fifth amendment to the constitution of the state of Connecticut.

“ (b) In and by said resolutions the legislature has attempted to delegate to a commission the arbitrary power of deciding what land shall be taken for the purposes named therein, and of compelling certain municipal and railroad corporations, in invitum, to take said land and pay therefor, without any voice in the selection of .said lands.

“ (e) In and by said resolutions the legislature has attempted to give to the applicants the right to condemn and take private property for a public use, but compels the owner to look to other parties for the compensation therefor.

“ (d) Said resolutions do not provide that any party shall pay for the land when condemned, nor do they give to the owner of the land taken any legal means of enforcing payment therefor; and, even if they do, a judgment against the New York & New England Railroad Company could not be satisfied in this state, as all their property is covered by large mortgages.

“ 2. Said resolutions only authorize, if at all, a taking of land for one single and entire public use; but the applicants are now seeking, in and by these proceedings, and others pending before the same judge, both against this respondent and also against other parties, to condemn and take adjoining lands under the alleged authority of these same resolutions of the General Assembly, for three distinct public uses; while it may be so that land condemned for two of said uses may be taken and paid for by the parties for whose benefit said land is condemned, and yet the land taken for the other use may not be taken, and so the consummation of the whole purpose contemplated by said resolutions be impossible.”

The act, in scope and purpose, concerns protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe highway. The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads may compel them severally to become the owners of the right to lay out new highways and new railways over such land and in such manner as will separate the grade of the railways from that of the highway at intersection ; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone or in part by both; and may enforce obedience to its judgment. That the legislature of this state has the power to do all this, for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.

From the character of the use of a right of way by the city for a highway, and of the use of a like right by the railroad companies for railways, there arises the necessity that each should be the sole owner of the right actually used by it; and the judicial proceedings are so framed as to bring about that result. Three corporations create the nuisance and are responsible to the public for its existence in, as yet, unmeasured and unknown proportions. Therefore it cannot now be said or assumed that because, for the specified reason and purpose, the railroad acquires sole ownership of the right to use land, it is under any obligation to pay the entire cost of such right. That depends upon the extent of its obligation to the public in the matter of abatement of the nuisance, to be measured by the commission. Of necessity too the three corporations must acquire, each for itself, a right of way by condemnation. The statutory proceedings for that purpose must end in requiring each to pay the owner for the right taken for itself. The fact of such payment, in this instance, proves nothing, as to the extent of the obligation of the corporation making it, in reference to the nuisance. If, after making it in form, in obedience to the statutes, the commission should require either of the other corporations to reimburse a portion of the sum so paid, it will be neither a loan nor a gift. It is but the apportionment of the amount to be raised by the three for the common purpose of abating the nuisance, made circuitously; because the intervening rights of strangers must be respected and acquired by due process of law.

If the sum set against the city should happen to exceed the cost of the necessary new highway and bridge, the excess is in no sense a gift or loan to the railroads. The city has done no more than discharge its obligation to the public; no more than pay a debt due wholly from itself; has paid- nothing to or for either railroad. Each railroad when it has paid its assessment, has discharged its obligation to the public; paid all that it owed. That the debt due from the railroads is found to be less than the cost of land for new tracks, and that from the city to be more than the cost of land for new highways and bridges, is quite immaterial upon the question before us. It is a matter of payment of debts by the several corporations to the public; not of transfer of property from any one of them to any other. For, when the act in question is fully executed, the city will have received nothing, by way of loan or gift, from either railroad corporation; nor will either of the latter have received any loan or gift from the city; each one will have paid its debt to the public growing out of the wrong jointly inflicted by them upon the public. The sum assessed upon and to be paid by the city is not controlled by the cost of any particular portion of the work; but it measures the responsibility of the city for the nuisance—measures its pecuniary obligation to the public, as determined by the legislature. For this reason we think the act does not violate the constitutional provision against municipal aid to railroads.

The constitution provides that “ the property of no person shall be taken for public use without just compensation therefor.” In its application to the condemnation of land for railway use, the word “ taken ” in the constitution means the exclusion of the owner from use and possession and the actual assumption of exclusive possession by the railroad corporation at the termination and as the result of judicial proceedings. The act in question provides that “ all property taken under said proceedings shall be deemed to be taken by the party for whose benefit the proceedings are had, and upon their completion and the payment of the damages appraised, the right, title and interest so taken shall, by virtue of said proceedings, vest immediately and directly in the party for whose benefit and use said condemnation is made as aforesaid, in the same manner and to the same extent as though said proceedings had been lawfully begun and prosecuted by and in the name of such party.” By the combined force of this act and of the general statutes the commissioners may institute judicial proceedings which may terminate in vesting in the city and the railroad corporations severally the right to use certain specified pieces of land for railway and highway purposes, if they will pay the appraised value thereof. But the meaning of the act before us is that, after appraisal completed, actual payment of the same is to be made to the owner as a necessary prerequisite to the passing of any right to or interest in the land to the corporation—to the right to occupy or use it; to the right to remove or disturb the soil; to the right to put any structure thereon. The court would enjoin the corporation from any invasion of the owner’s right of possession before payment.

The enforcement of the command of the legislature upon the municipal and railroad corporations to abate the nuisance, necessitates judicial proceedings, because the land of individuals is to be taken by right of eminent domain. For this reason, for the specified purpose and to this extent, the legislature may give to its own commission standing in court to ask that land may be subjected to tbe use of eacand may impose upon each the same obligation to obey any order of tbe court in tbis bebalf and to pay tbe amount of tbe appraisal, and then to use tbe land for tbe specified purpose, as would bave been upon them if they bad voluntarily asked and received in their own names. Tbis is not an imposition of an agent to ask for a binding judgment upon them in any matter of contract or right, as between either of them and an individual, or a corporation, or tbe state itself. It is tbe use, in a permissible manner, by tbe legislature, of tbe governmental power to compel each corporation to contribute to the cost of tbe abatement of tbe dangerous nuisance which it now maintains. No property is to be taken from either, no right is to be taken or even diminished ; only they are to so use their rights as not to endanger public safety. Neither in seeming nor in fact does tbe act provide for tbe condemnation of land for tbe use or in bebalf, either of tbe commissioners or tbe state. Neither tbe state nor tbe commissioners are to own any right in it; but tbe commissioners are empowered so to ask that all resulting acquisition of right, all resulting obligation to perform duties, make payments, and use land, are to and upon tbe corporations severally.

Tbe act has a single end in view—to separate tbe grade of tbe railroads from that of tbe highway at intersection. To accomplish tbis tbe commission is empowered to require and has required tbe railroads and tbe city severally and independently to become tbe owners of tbe right to use such separate pieces of land as may be necessary for new railways and new highways and bridges. Tbe proceeding is in tbe line of tbis requirement.

For our present purpose we bave tbe right to assume that tbe commission will not change tbe plan adopted, and that tbe legislative order will continue in force against each of tbe three offending corporations. We should not be justified in assuming that tbe legislature will be unable to enforce its mandate against aR and, upon that assumption, declare the act void.

The Superior Court is advised that there is no error in the judgment complained of.

In this opinion the other judges concurred.