134 A. 268 | Conn. | 1926
Yale University owns the fee to the land on either side of High Street in New Haven and seeks a declaratory judgment as to whether it has authority, or can be given authority, to build an ornamental arch or bridge from its old art school building on the east side of High Street to a new proposed art school building to be erected on the west side of High Street, being the northwest corner of High and Chapel Streets. It also owns the fee to High Street subject to an easement for highway purposes in the public. This easement gave the public, under the common law, the right to pass to and fro upon this street for every purpose of travel and traffic, and the right to move every kind of property over this street, in a reasonable manner, so long as this does not impose an additional servitude upon the fee, with the incidental right in the public to do all acts thereon necessary to keep it in repair and using therefor "the soil and materials upon it in a reasonable manner for the purpose of making and repairing it." Peck v. Smith,
The early common law conception of the extent of this public easement has grown with the public necessity to include, not only the surface and a depth sufficient to make and keep the surface in proper condition for travel, but so much of the highway beneath the surface as is required for public purposes, such as the laying of sewers, catch basins, drains, hydrants and pipes for conveying water, gas, electricity and telephone and telegraph wires. It also has come to include not alone the right of travel and transportation upon and over the highway but the right to erect poles thereon for public utilities and to string wires from pole to pole, together with the equipment upon the poles for carrying electric power, telephone and telegraphic wires. None of these uses of the surface above *617 or beneath the highway add a new servitude to the highway, or interfere, practically, with the fee of the abutter in the highway.
It has long since been recognized by user, and judicially, that this enlargement of the public easement exists through public necessity when the rights of the abutter in the fee of the highway have not been materially impaired or restricted. We say in CanastotaKnife Co. v. Newington Tramway Co.,
The easement for travel and transportation requires light, air and view, hence it includes so much of these as are necessary in order to provide an easement which is at once sufficient and suitable for every kind of reasonable travel and transportation over and upon the highway. To maintain a public easement of this character the highway must remain open and unobstructed, at least for such a height above the highway as will secure all the light, air and view required to provide and maintain a highway adequate and suitable for travel and transportation. Gulick v. Hamilton,
We pass from the consideration of the easement of the public in the highway to the consideration of the right of the abutting owner such as this University, having the fee to the highway. It has an equal right to the use of the highway with every member of the public, and such other rights of ownership in the fee as are not inconsistent with the public easement in the highway. Opinion of the Justices,
We have in the necessities of time due to changing conditions and circumstances, broadened the common law conception of the rights of the public and abutters in the highway. The right of easement in the abutter on the highway in the light, air and view over the space in the highway in front of his property which we herein recognize, is a part of the development of the common law. Yale University has no right, power or authority to construct the proposed structure without permission from the authorized public body having control of the highway. Davis v. Spragg,
The next question we are to answer is, whether the city of New Haven is empowered to grant permission to the University to erect this structure. The control, regulation and maintenance of the highways of New Haven, as of any municipality in the State, are primarily, with the police power of the State, vested in the legislative branch of government — the General Assembly — and, subject to constitutional limitations and to the property rights of the abutting owner, its control is absolute. Canastota Knife Co. v. Newington Tramway *622 Co.,
The State as trustee for the public may through its legislative branch delegate this power of control, in whole or part, to its several municipalities to act in this regard as its agent. Whatever power it has delegated it may resume, or redelegate to another body.Winfield v. Public Service Com.,
Section 137 (Special Laws of 1899, p. 428) gives to the court of common council (now board of aldermen) authority to open, improve, light and repair highways, to keep them open and safe for public use and travel and free from encroachments or obstructions, and power over the "regulation of any work or thing therein, whether temporary or permanent, upon or over the surface thereof." Similar power has been conferred upon the highway commissioner as to trunk lines, or State aid highways, in § 1 of Chapter 100 of the Public Acts of 1925, page 3867. The conferring upon the board of aldermen of the sole authority over all streets and highways in New Haven, together with an enumeration of the specific powers included under the broad power of sole authority, is a delegation of the legislative control over all the highways of New Haven, except in so far as that control was then or has since been vested in other public bodies or officials, as complete as language is apt to be used.
The board of aldermen was thus constituted "the general guardian of the public interests" in and over these highways. Section 132 is somewhat shortened from that usually found in our municipal charters, but it bears their meaning. New London passed an ordinance under similar charter authority which forbade the placing or keeping of any sign, projecting over any street or sidewalk except under specified conditions. Upon a prosecution for maintaining a sign over the street in violation of the ordinance, we sustained the ordinance. State v. Wightman,
We next determine whether a grant of permission to erect the structure in question would be valid within the legislative power thus conferred. We test it by asking, will the exercise of this power unreasonably interfere with the public easement over this highway, or will it materially injure owners of land upon either side of this highway? The agreed facts of record differentiate this case from other cases dealing with structures erected over a highway. The structure to be erected will rest upon foundations set outside the highway and upon land of the abutting owner, the University, and no part of the structure will touch the highway. It will be erected at such height above the highway as in no wise to interfere with travel or traffic *626 upon its surface. It will not interfere with the light, air or view of any owner of the land on either side of the highway. It will not interfere with any legitimate use of the highway. It will help bind together in a common use two of the buildings of a great university devoted to the fine arts and serving the double purpose of instruction to its students, and through its art gallery teaching, not alone its body of students, but the community in which it is located, to know, and feel and love the beautiful in art. It will in this way render a public service to the people of the city of New Haven, and in a qualified degree to the people of the State. It will provide an adequate place for the safe keeping in a modern fire-proof building of the present and future collections of the art treasures of the Yale School of the Fine Arts.
The proposed ornamental arch or bridge and the proposed new art gallery will be in architectural harmony with the Harkness Memorial Quadrangle located upon the west side of High Street to the north. They will form a part of a group of buildings which will add greatly to the architectural beauty of New Haven and enlarge the usefulness of Yale University to that community. If service like this be not a public use in the legal sense, it must be held to be at least a quasi-public use. Purposes which educate, uplift and ennoble a community, should be esteemed of as great public good as the things which add directly to its wealth or give employment to its citizens. The development and encouragement of the things of the spirit are more enduringly vital to the State than the development of its material resources.
In this case no abutting owner or other landowner can claim compensation for violated rights of property. No one of the public will suffer in his right to the public easement over this highway. The city will not *627 be injured, but it and the entire community will be immeasurably and permanently benefited.
The license or permit to erect this arch or bridge will be revocable at the will of the board of aldermen whenever the public necessity or convenience requires, while its use, however long, will not ripen into a right of maintenance against the legislative will. The landowner on both sides, or different owners on either side, cannot erect a structure across a street without public authority. Under these circumstances there appears to be no valid reason why the grant by the board of aldermen of permission to erect this structure should be declared invalid any more than its authority to permit an awning to be hung across a sidewalk of the highway. Each is an exercise of control of the space above the highway. No constitutional provision is involved. When neither public nor private interest is materially affected, the exercise of its charter power by a city by granting permission to an owner upon both sides of the highway to build a structure across it depends upon what is reasonable (People ex rel.Mather v. Marshall Field Co.,
"16. There are and have been for many years existing and maintained by private corporations and individual landowners in many towns in Connecticut, and especially in many towns where manufacturing establishments are located, many bridges or overpasses over and across highways, which are high enough so that they do not interfere with a free flow of traffic on the surface of the highways beneath them, but *628 which are used for private purposes and for purposes of direct passage and communication above and across such highways between lands and buildings owned by the same owners but situated on opposite sides of such highways, respectively."
While these admitted facts do not state whether these structures were erected with authority, they do tend to show what is customarily regarded in this day as reasonable. Whether the permit if authorized is reasonable will depend upon the circumstances of each case. In congested centers of business over much traveled streets, a permit to erect a bridge, passway or arch by abutting owners could rarely, if ever, be sustained as a valid reasonable exercise of public authority.Kelty v. Minneapolis,
The authorities upon the principal point involved are in conflict. In
In Hotel Wisconsin Realty Co. v. Gross Realty Co.,
The case before us, as well as Kellogg v. CincinnatiTraction Co.,
An adjoining owner, in Townsend, Grace Co. v.Epstein,
We have already pointed out the rule of law of these authorities is applied to a set of facts quite different from those in Kellogg v. Cincinnati Traction Co.,supra, or in the instant case, where we find as admitted facts that none of the property rights of adjoining owners will be injured, none of the public easement of passage over this highway materially interfered with and that the overhead structure will convenience and benefit the public. The weight of authority appears to be against the conclusion we have reached. Yet it must not be forgotten that no one of these cases has been determined upon the same facts as are present in the instant case. The rule of law we invoke gives ample protection to the public and to the adjoining owner while according to an abutter a right of encroachment upon the highway easement when found reasonable within the principles stated in this opinion and duly authorized by competent authority. This rule of law is based, as we think, upon sound reason and is not antagonistic to those fundamental principles underlying our own highway law. It makes the granting of such permits dependent upon their being both authorized and reasonable.
The answers to the questions propounded do not require an answer to the question, Is the University, in the event that the board of aldermen grant it permission to erect this structure, compelled to secure a permit from the inspector of buildings in accordance with the building ordinance (Chapter VI of the Ordinances of New Haven)? That there may not hereafter be any misconception upon this point, we answer, without discussion, that such a permit is required before the University can begin the erection of this structure. The board of aldermen determine, within the principles stated herein, whether the structure can be erected, while the inspector of buildings must see that *632 the plans and specifications of the structure comply with the building ordinance before approving of the same and issuing his permit, and thereafter supervise its erection so that it does not deviate from the plans and specifications.
The Superior Court is advised that we answer question A. yes, and questions B. and C. no.
No costs in this court to be taxed in favor of either party.
In this opinion the other judges concurred.