Appeal of N.Y., N. H. & H. R. Co.

• Decision Date: 02 June 1908
• Citation: 80 Conn. 623,70 A. 26
• Court: Connecticut Supreme Court
• Parties: Appeal of NEW YORK, N. H. & H. R. CO.

70 A. 26

80 Conn. 623

Appeal of NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

June 2, 1908.

Appeal from Superior Court, New London County; Joel H. Reed, Judge.

Application by the New York, New Haven & Hartford Railroad Company to the mayor and common council of New London, for authority to erect an overhead line for the transmission of electricity from its power station to a substation in New London, where the electricity was to be used and applied by its street railway lines. From a judgment of a judge of the superior court adjudging that the railroad company might erect and maintain an overhead conductor, and revoking an order of the city council denying an application for such authority, on the ground that the street committee, to whom the matter was referred, did not consider it safe to grant the petition unless the wires were placed underground, the mayor and common council of New London appeal. Reversed and remanded.

Benjamin I. Spock, for appellant.

John C. Geary, for appellee.

HAMERSLEY, J. The proceeding before Judge Reed, in which the judgment appealed from was rendered, is an application by the New York, New Haven & Hartford Railroad Company, being a street railway company (hereinafter called the plaintiff), asking that the action of the mayor and court of common council of the city of New London (hereinafter called the defendant), in making an order for preserving in a safe condition for public use the highways, for whose maintenance in a safe condition the city is charged by law as the agent of the state for that purpose, may be revoked, because the action complained of is illegal, without authority of law, and injurious to the rights and property of the plaintiff. The application is an original process, called "appeal," for invoking the exercise of judicial power, and is made to a judge of the superior court sitting in chambers, in the exercise of the judicial power vested in that court. Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 599, 602, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794.

The reasons for appeal assign three errors. They are, in substance, two: First, in holding that the defendant had no power to make the order complained of; second, in holding that the superior court or a judge in chambers could entertain an application for determining the question of power before the subject-matter of the order had been passed upon by the railroad commissioners. If either assignment of error is well taken, its determination finally disposes of this case; but the errors are so related that it is impracticable to thoroughly discuss the grounds on which any one assignment can be sustained without, in a measure, determining all. The plaintiff has authority from the Legislature, for the purpose of operating an electric railway to generate electricity, and for the purpose of using and applying the same as a motive power for the operation of its railway, to transmit electricity from the place of generation to the place where it is to be so used and applied, and in such transmission to place electric wires and conductors over, on, or under any highway, having first obtained consent of owners of land abutting on the highway, and such placing being subject to the full direction and control, including the relocating or removal of the same, of the cities or other agents of the state charged with the duty and invested with the power of protecting the public safety against the dangers incident to the use of the highways for such wires and conductors. Sp. Laws 1905, pp. 706-711. The precise controversy between the plaintiff and defendant is this: The defendant claims that in the exercise of its power of full control and direction, it has the power to order such electric wires and conductors to be placed in conduits under the highways. The plaintiff claims that it alone is authorized to decide whether such wires and conductors shall be placed over or under the highways, and that neither the city nor any other agent of the state, charged with protecting public safety in the use of the highways, has any power to direct that these electric wires and conductors shall be placed under ground. A determination of this question depends upon the meaning of existing legislation relating to highways, to the duties and powers of the agents of the state charged with their maintenance, and with the protection of the public in their use as highways, and to their occupation in aid of some public use other than that of a public highway.

The existing law, as contained in the Revision of 1902, is to be found under various heads of legislation, sometimes covering, in a little different form, the same ground, and all intended to give effect to substantially the same public policy. This law is the result of distinct but closely related lines of legislation. One fixes the general rule of policy, namely, that towns, cities, and boroughs shall be charged with the burden of maintaining public highways, and invested with the power of protecting the public safety in their use. This policy was recognized in 1672 (Acts 1672, p. 7), and has remained substantially unchanged. Rev. 1902, §§ 2012-2089.

Shortly after the invention of the telegraph, lines of telegraph were recognized as furnishing such public advantages as justified some use of the highway in aid of such a public use. In 1846 a company was chartered "to construct and use lines of telegraph" under the Morse patents. 4 Sp. Laws, p. 1212. In 1848 special provisions were made for the incorporation of telegraph companies, and such companies were authorized to condemn private lands, and to use highways for their necessary fixtures, provided the same shall not be so constructed as to incommode the public use of said highways. In 1849, recognizing such use of the highway as an additional servitude on the land of the adjoining owner, it was provided that no telegraph company could place any post, etc., on the highway without consent of the adjoining owner, and providing for a taking of the right by condemnation if such consent were refused; and in 1853 these privileges in the construction of telegraph lines were extended to all associations and persons who shall extend lines from beyond the state to any point within the state. Comp. Laws 1854, pp. 210-213, tit. 3, c. 12. In 1860 the privileges in the construction of telegraph lines were recognized as extending to all owners of telegraph lines, foreign and domestic. Provision was also made for the removal of any poles which might become an annoyance to the public in the use of the highway, or to an individual in the use of his property, and specific power was given to cities and boroughs to compel companies to furnish such poles of the style and finish as the municipal authorities might determine, and provisions were also made for the appraisal of damages to which any person might be entitled by reason of such use of the highway. Pub. Acts 1860, p. 52, c. 66. The foregoing provisions were substantially incorporated in the Revision of 1866, under the heading "Telegraph Companies" (Rev. 1866, p. 208, tit. 7, c. 7); and the same provisions were incorporated in the Revision of 1875, under the same heading (Rev. 1875, tit. 17, c. 2, pt. 10, p. 341).

In 1879 the existing law, being part of Chapter 2 of title 17 of the Revision of 1875, was amended, by adding after the word "telegraph," wherever the same may occur the words, "or telephone." Pub. Acts 1879, p. 381, c. 36. In 1881 an electric light company was authorized to make and sell electric light and electricity, and in 1882 a telephone company was chartered. 9 Sp. Laws, pp. 212, 605. The following year a "Light and Power Company" was chartered, authorized to make and sell electricity for light and power; and from 1885 to 1889 a large number of electric light companies were chartered. 10 Sp. Laws, passim. In 1884 an act provided that every person, who shall place any telegraph or telephone pole in, upon, or over any highway without consent of the adjoining owner (or condemnation proceedings), or who shall willfully injure any tree in such highway for the purpose of maintaining therein any telegraph or telephone fixtures, without consent of adjoining owner, shall be fined or imprisoned. Pub. Acts 1884, p. 376, c. 96. In 1886 an act provided that no telegraph, electric light, or telephone company shall cause to be injured any tree growing on the highway, for the purpose of constructing or maintaining therein any telegraph or telephone fixtures or wires, without consent of adjoining owner, under penalty of a fine for each offense. Pub. Acts 1886, p. 617, e. 118.

The law, as thus established, was as follows: The public use for which highways were established did not include their use for telegraph or telephone lines. Telegraph and telephone lines were treated as of sufficient benefit to the public to justify a limited use of the highway and the condemnation of private rights for such a public use. Every telegraph and telephone company was authorized, in the construction of its line, to use any highway in such way as not to incommode public travel, nor injure private property without the owner's consent. Every telegraph or telephone pole, which became an annoyance to the public in the use of the highway, was treated as a nuisance, subject to removal. The municipal authorities of cities and boroughs could compel the use of such poles as they might prescribe. No telegraph or telephone company could place any pole or fixture in or upon any highway without the consent of the abutting landowner or a condemnation of his right. Provisions for such condemnation were made. The placing of any telegraph or telephone pole, and other injury to private property in violation of these provisions was made a criminal offense.

In 1887 by "An Act Concerning Electric Companies" (Pub. Acts 1887, p. 676, c. 33), the Legislature classed lines, for the distribution of electric light...