Connecticut Light & Power Co. v. Town of Southbury

• Court: Connecticut Supreme Court
• Writing for the Court: BEACH, J.
• Citation: Connecticut Light & Power Co. v. Town of Southbury, 111 A. 360, 95 Conn. 88 (Conn. 1920)
• Decision Date: 20 July 1920
• Parties: CONNECTICUT LIGHT & POWER CO. v. TOWN OF SOUTHBURY et al.

111 A. 360

95 Conn. 88

CONNECTICUT LIGHT & POWER CO. v. TOWN OF SOUTHBURY et al.

Supreme Court of Errors of Connecticut.

July 20, 1920

Appeal from Superior Court, New Haven County; Donald T. Warner Judge.

Petition by the Connecticut Light & Power Company against the Town of Southbury and another for permission to flow certain highways and for the abandonment of the same. Judgment for petitioner, and defendant Town of Southbury appeals. No error.

See also, 111 A. 363.

The petition was brought pursuant to the provisions of chapter 205 of the Public Acts of 1919, and as amended it alleges that the petitioner is constructing a dam for power purposes across the Housatonic river, which, when completed will cause to be flowed five sections of public highways described therein ranging from 200 to 500 feet in length, all of which are described as extending in a northerly, northeasterly, or northwesterly direction from the so-called River road. The River road itself is alleged to have been already duly discontinued under the provisions of chapter 217 of the Public Acts of 1919 within the limits described in the petition. The prayer for relief asks for an order of notice of the time and place of hearing and for permission to continue to construct and operate the dam and for the abandonment of the five sections of highway described.

On July 31, 1919, an order of notice of hearing on August 11th was issued and served August 1st, and an adjourned hearing was had thereon August 18th, when demurrers were filed, overruled, and the case continued to August 21st. On that date the town of Oxford withdrew its appearance and consented to judgment, and the town of Southbury was required to file its answer, and the cause was on the same day tried, and judgment rendered ordering the sections of highway abandoned upon payment to the defendant town of specified damages.

The judgment file finds all the allegations of the amended petition true, and in the findings made for the purpose of appeal it is found that the Connecticut Light & Power Company is a corporation chartered by the state, that the abandonment of the described sections of highway is advisable and necessary in connection with the construction and operation of the dam in question, and that the petitioner is not able to agree upon the abandonment of the described sections of highway or any part thereof with either the town of Oxford or the town of Southbury.

William H. Shields, Jr., of Norwich, and John H. Cassidy and Lawrence L. Lewis, both of Waterbury, for appellant.

Terrence F. Carmody and Walter E. Monagan, both of Waterbury, and Alfred C. Baldwin, of Derby, for appellee.

BEACH J.

The questions raised by the appeal of the town of Southbury will be dealt with as summarized and described in its brief. Chapter 205 of the Public Acts of 1919 relates to persons or corporations engaged in constructing, raising, or operating a dam for milling, manufacturing, or power purposes. The amended complaint alleges that the petitioner is constructing its dam for power purposes, and the judgment file finds that all the allegations of the amended petition are true. The defendant nevertheless claims that, because there is no express finding to that effect made for the purposes of appeal, the jurisdictional fact is not found. The claim is unsound. The jurisdictional fact is found in the judgment file, and we have often held that a finding on appeal can be helped out by reference to the recitals of the judgment.

The petition alleges that the petitioner is not able to agree on the abandonment of the described sections of the highway with the respondent towns, and the trial court had so found. Section 2 of the act provides that:

" If the above parties fail to agree upon the alteration, relocation or abandonment of any such highway or any portion thereof, the person or corporation constructing, raising or operating such dam may prefer a complaint against such other party," etc.

It is claimed that the petitioner must allege and prove that it is unable to agree either on the alteration, or on the relocation, or on the abandonment of these highways before it can apply for relief under the statute. There is, however, no reason why the petitioner should allege and prove a disagreement as to relocation of the highway, when no relocation is contemplated. There is nothing in this particular case for the parties to disagree about, except the terms and conditions of abandonment. From the time that the so-called River road was abandoned these highways in question became pent roads, and, if permission is given to flood them back to the points where the contour line of the proposed water level happens to cross them, they will to that extent cease to exist. There is no question of relocating them, or altering them, for that cannot be done except by extending them as wharves or piers into the waters of the petitioner's pond, where they would be useless as highways for public travel.

It is unnecessary to follow the argument leading to the conclusion that the public is entitled to another highway any further than to say that the authority of the General Assembly over the discontinuance, alteration, or relocation of highways is supreme. This is not a case of interrupting travel to a given destination. In this case the destination itself has been wiped out.

The same considerations apply to the contention that the prayer for relief was demurrable because it did not ask for the alteration and relocation of these highways as well as for their abandonment.

It is objected that the court admitted the evidence of certain records of town meetings tending to show that the petitioner and the respondent towns were unable to agree upon the abandonment of the River road. It is claimed for the respondent and denied for ...