Andrew B. Hendryx Co. v. City of New Haven

• Decision Date: 03 July 1926
• Citation: 134 A. 77,104 Conn. 632
• Court: Connecticut Supreme Court
• Parties: ANDREW B. HENDRYX CO. v. CITY OF NEW HAVEN.

134 A. 77

104 Conn. 632

ANDREW B. HENDRYX CO. v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 3, 1926

Case Reserved from Superior Court, New Haven County; Arthur F Ells, Judge.

Suit by the Andrew B. Hendryx Company against the City of New Haven to restrain defendant from removing or in any way interfering with a conveyor erected by plaintiff over Audubon street in New Haven, in which defendant filed cross-complaint. On facts set forth in the complaint and answer and admitted by the parties, for the advice of Supreme Court of Errors. Questions A, B, and C answered, No, and question D, Yes.

The plaintiff alleged and defendant admitted these facts: Audubon street in New Haven is a public highway about 500 feet in length, and runs east and west between Orange street and Whitney avenue. The plaintiff owns a tract of land on the south side of this street, and since 1879 it and its predecessors have conducted a manufacturing business in buildings erected upon this land. It also owns a tract on the north side of this street and directly opposite a part of its tract on the south side. It has erected upon the tract on the north side buildings used in its manufacturing business for the storage, packing, and shipping of its finished product. For 50 years last past the land in the westerly part of this street has been used for manufacturing purposes, and all of the land on Audubon street and lying between the land of plaintiff and Whitney avenue is used exclusively for manufacturing purposes. The plaintiff also owns three tracts of land on the south side of Audubon street and east of its plant, and also one tract on the north side of this street and east of the tract used by it for its finished product. In carrying on its business, the plaintiff has transferred its finished product for its manufacturing plant to its plant on the north side of this street by means of an electric truck guided by an operator which has made upon the average 120 trips a day. To avoid this crossing of Audubon street, and to do this work more expeditiously, plaintiff has erected four uprights upon its own land, two on the south and two on the north side of this street and in front of its buildings, and it has constructed a device entirely supported by these uprights and with an equipment that, when completed, will enable it, by a system of gravity or other method, to transfer its finished product from its manufacturing plant to its storage, packing, and shipping plant. This device can only be used as a conveyor of merchandise and not for the passage of persons or vehicles. It is 22 feet above the surface of Audubon street, and does not and will not interfere with travel or traffic through, over and upon the surface of this street by vehicles or pedestrians either on the sidewalk or in the traveled way, or with any legitimate use of this street for a highway. It has cost the plaintiff $5,793.52. On December 5, 1923, the defendant notified the plaintiff to remove this device on or before December 10, 1923, or, if plaintiff did not comply with this notice, it would remove the structure as provided by the ordinances of the city. The plaintiff claimed a permanent injunction restraining defendant from removing this device or in any way interfering with it as erected.

In its answer defendant, after admitting the above facts as contained in plaintiff's complaint, further answered That under authority of the General Assembly it duly enacted an ordinance known as the Building Code, which provided in part:

" (1) Before the erection, construction or alteration of any building, or structure, or part of same, * * * there shall be submitted to the building department an application for a permit * * * containing a detailed statement of the specifications * * * and accompanied by a full and complete copy of all necessary plans of such proposed work, and such detail structural drawings thereof as the building department may require. (5) * * * The erection, construction, or alteration of said building, structure, or any part thereof * * * shall not be commenced or proceeded with, except after written approval by the building department of the applications, plans, detail drawings, and permit."

In section 11, a scale of fees is provided for a building permit for buildings. Neither the plaintiff nor any one on its behalf has ever applied for or received the permit as described in the ordinance above quoted.

Defendant further alleged: That it, pursuant to power granted it by the General Assembly, has duly enacted ordinances prohibiting encroachments beyond the street line of any street in New Haven of which section 650 reads in part as follows:

" No person * * * shall place thereon any obstruction whatever, * * * or erect or construct any bridge in or over any of the streets * * * in said city * * * without a license or permission from the proper authorities."

And that plaintiff without any permission from defendant or from any commission, body, officer, or board of defendant began the erection of the structure described in the complaint and continued until it has become of the character of the device described in the complaint. Section 414 of the ordinances reads as follows:

" Every encroachment upon any street beyond the street line, by any fence, building or stop, shall be deemed a common nuisance."

Section 415 reads as follows:

" Every obstruction of any street, public square or walk in said city, contrary to any provision of the chapter concerning public works, shall be deemed a common nuisance."

Section 450 reads as follows:

" Whenever the director of public works shall have written notice from the chief of police of the existence of any of said nuisances in said city, if the same be in any public street, square, or grounds, or in any place designated in section 418 of these ordinances, he shall cause the same to be abated or removed at once."

The device described in the complaint extends over Audubon street.

The defendant also pleaded by way of cross-complaint by alleging, as its paragraph 1, all of the paragraphs of its answer, and, as paragraph 2, that the plaintiff intends to leave this structure permanently in the position described in the complaint. It claimed relief under its cross-complaint, viz.:

" An injunction requiring the plaintiff to remove said structure from the highway and to abate said nuisance, and restrain the plaintiff from making any use of so much of said structure as extends over the highway."

The plaintiff admits all of the allegations of the answer and cross-complaint.

Philip Pond and Robert C. Stoddard, both of New Haven, for plaintiff.

Louis Feinmark, of New Haven, for defendant.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J. (after stating the facts as above).

Yale University v. New Haven, 134 A. 268, was argued at the same term the instant case was argued, and the opinion in that case has settled for this jurisdiction the most important of the questions involved in this action. We determined in that case that the public easement in a highway whose fee was in the abutting landowner included so much of the space above the surface of the highway as was necessary to furnish all the light, air, and view to and over the highway required to provide and maintain the highway adequate and suitable for travel and transportation; that the abutting owner on the highway has an equal right to the use of the highway with each of the public, and such other rights of ownership in the fee as are not inconsistent with the public easement in the highway; that the abutting owner has no right to construct and maintain an unauthorized overhead structure across a highway whether it interferes with travel or traffic or not; that the General Assembly has vested in the city of New Haven the sole authority and control over its highways, which was primarily vested in the General Assembly; that under the charter of New Haven the board of alderman has authority to grant permission to erect and maintain an overhead structure across a highway, provided it does not unreasonably interfere with the public easement of travel and transportation over the highway, nor do material injury to the owners of land on either side of the highway, and provided the exercise of this power by the city is reasonable under the surrounding circumstances.

The conclusions reached in the Yale University Case are equally applicable in this case. The public easement in Audubon street includes the space above that street, so far, at least, as necessary to furnish light, air, and view to and over the street. The plaintiff, the abutting owner, without authorization from the proper authority had no right to erect nor to maintain the overhead structure connecting its buildings on opposite sides of the street. It follows that the plaintiff is not entitled to the injunctive relief it prays for, restraining the defendant from removing or interfering with this structure.

There remains for answer the final question of the reservation: Is the defendant entitled to the injunction prayed for in its cross-complaint? The plaintiff has by erecting this overhead structure across the street without permission from the proper authority, the board of aldermen, obstructed the public easement of the city in this street and created a nuisance therein, and therefore the city, under its charter powers, may remove the structure and abate the nuisance and is entitled to the injunctive relief it prays for. It rests its prayer for relief upon certain ordinances, enacted, it alleges under authority given it by the General Assembly. None of these ordinances are attacked by the plaintiff as invalid by reason of being beyond the charter power,...