Cadwell v. Conn. Ry. & Lighting Co.

• Decision Date: 15 June 1911
• Citation: 84 Conn. 450,80 A. 285
• Court: Connecticut Supreme Court
• Parties: CADWELL v. CONNECTICUT RY. & LIGHTING CO. et al.

80 A. 285

84 Conn. 450

CADWELL

v. CONNECTICUT RY. & LIGHTING CO. et al.

Supreme Court of Errors of Connecticut.

June 15, 1911.

Appeal from Superior Court, Hartford County; Luclen F. Burpee, Judge.

Action by William H. Cadwell against the Connecticut Railway & Lighting Company and others to recover damages for injuries to plaintiff and his dwelling house adjoining a highway, alleged to have been caused by the noise, vibration, and dust arising from the operation by defendants of a street railway in such highway. From a judgment for defendants on demurrer to plaintiff's complaint, he appeals. Affirmed.

The three defendant corporations are alleged to be, respectively, the owner, lessee, and present operator of a street railway system, one line of which has for many years extended along West Main street in New Britain in front of premises owned and occupied since 1902 as a residence by the plaintiff. It is alleged that the second of these corporations at one time prior to June 1, 1907, itself operated the system, it being succeeded by the third named. The allegations which follow are the following:

"(6) The defendants, day by day, have operated, and the Connecticut Company operates on said railroad on said land, great numbers of passenger cars.

"(7) The defendants, day by day, have operated, and the Connecticut Company operates on said railroad on said land, cars called 'express cars.'

"(8) The defendants, day by day, have operated, and the Connecticut Company operates on said railroad on said land, cars early in the morning and late at night.

"(9) The defendants, on divers days, have operated, and the Connecticut Company operates on said railroad on said land, work cars, at times, in trains carrying construction and building material and gangs of workmen.

"(10) The defendants, on divers days, have operated, and the Connecticut Company operates on said railroad on said land, cars having noise-causing defects.

"(11) The defendants, on divers week days, have operated, and the Connecticut Company operates on said railroad on said land, in the summer time, a great number of cars running at short distances from each other and crowded with passengers inside, and at times, in the case of open cars, on the running boards.

"(12) The defendants have operated, and the Connecticut Company operates on said railroad on said land, on Sunday, in the summer time, a great number of cars running at short distances from each other, and crowded with passengers inside, and at times, in the case of open cars, on the running boards. * * *

"(14) The noise, vibration, and dust caused by the operation of said railroad on said land as above described is and has been an annoyance to the plaintiff and his family, and greatly disturbs and interferes with the comfort and quiet enjoyment of his home.

"(15) By reason and because of the noise, vibration, and dust caused by the operation of said railroad on said land, as above described, the value of said land and dwelling house has been greatly diminished, and the plaintiff greatly damaged thereby. * * *"

Charles H. Mitchell and William C. Hungerford, for appellant. John T. Robinson and Francis W. Cole, for appellees.

PRENTICE, J. (after stating the facts as above). A corporation operating a street railway system in a highway may expose itself to legal proceedings at the hands of an abutting landowner under varying conditions. It will do so, if it is operating its system in and through the highway without authority from the state. If such authority has been obtained, its system may be so constructed and operated as to impose upon the land which has been appropriated for the highway an additional servitude, within the meaning and definition of the opinions of this court. Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 Atl. 1107; New York, N. H. & H. R. Co. v. Fair Haven & W. R. Co., 70 Conn. 619, 40 Atl. 607, 41 Atl. 169. It may have such authority as the state can give for the construction of its lines, and that construction and operation may be such as to impose no additional servitude upon the highway, and yet the manner of that construction or operation may be such as to render it liable to the person who is thereby damaged in his property rights.

There is no claim that the defendants who have successively operated the line in question, and who for convenience will be hereinafter referred to as the defendant, have invaded the highway in question in its construction and operation without authority from the state. Counsel for the plaintiff also concede in their brief that no construction or operation of the road which is within the authority of the charter imposes an additional servitude upon the highway. It is apparent that the complaint would be wholly inadequate in its allegations, if the right of recovery was based upon the imposition of a new servitude in that way. They also state that they have not alleged that the mode of construction or operation actually employed was such as necessarily to work a new, direct, and special damage to the plaintiff. It is manifest from the allegations, and even more plainly from the brief of counsel, that the burden of the plaintiff's grievance which he has tried to present is that the defendant has been operating its lines and conducting its traffic in the highway in front of his premises to his annoyance and damage, by reason of the improper and unreasonable manner in which it has been doing it, and that he seeks redress not because it has been carrying on a business and traffic which was unlawful as being without authority, but unlawful on account of the way in which it was conducted. In discussion they have unnecessarily entangled the right of action which the plaintiff would have under such circumstances with the question whether or not an additional servitude was not thereby imposed, not upon the highway, but upon the adjoining land. The claim which he has to present involves no such complications as are thus gathered around it.

There is no more simple or...