Appeal of Town of Fairfield

• Decision Date: 15 February 1889
• Citation: 57 Conn. 167,17 A. 764
• Parties: Appeal of TOWN OF FAIRFIELD.
• Court: Connecticut Supreme Court

17 A. 764

57 Conn. 167

Appeal of TOWN OF FAIRFIELD.

Supreme Court of Errors of Connecticut.

Feb. 15, 1889.

Appeal from superior court, Fairfield county.

J. H. Perry and W. B. Glover, for the town of Fairfield. L. Harrison and W. D. Bishop, Jr., for the New York, New Haven & Hartford Railroad Company.

PARDEE, J. The statute (Gen. St. § 3489) provides that upon the petition of any town, city, borough, or railroad company, the railroad commissioners may discontinue any grade crossing of highway by railway, and determine at whose expense the change shall be made. Section 3491 allows an appeal to the superior court. The New York, New Haven & Hartford Railroad Company petitioned the commissioners to abolish all highway grade crossings upon its line in the town of Fairfield, of which there are several. They ordered the abolition of all these; also that the town of Fairfield should pay $12,000 towards the cost of executing the order. One of these is known as the "Elwood Crossing," and is at a point about one-fourth of a mile west of the Southport station. At the station the public cross the railway at their pleasure, as upon a public way. The commissioners, finding both of these crossings to be dangerous, ordered the abolition thereof, and the substitution therefor of one grade crossing at a point nearly midway between them. The town appealed to the superior court from the order of the commissioners. That court affirmed the action of the commissioners so far forth as the abolition of all grade crossings is concerned, but disaffirmed it so far forth as it required the town of Fairfield to pay any part of the cost of the work. The town of Fairfield appealed to this court on the ground that the court erred (1) in ordering the Elwood crossing closed; (2) in ordering the Elwood crossing closed, upon a new and different crossing being substituted therefor, involving a substantial change in the old highway; (3) in ordering the Elwood crossing closed, and a new and different crossing substituted therefor, to the inconvenience of the traveling public and adjacent property owners, in order that the railroad company might be saved the expense of constructing a proper approach to its station, in addition to separating the grades at the crossing, as was there entirely feasible; (4) in ordering the Elwood crossing closed as part of an arrangement, a controlling element in and motive for which was a provision for and the protection of a de facto crossing, which was not before the court, for the protection of which no application was pending, and which, so far as appeared, was not even a highway, but an approach to its station provided by the railroad company over its own land, and subject to its control. The New York, New Haven & Hartford Railroad Company appealed to this court for the following reasons: (1) That the court erred in that it assessed all of the expense of removing the grade crossings in the town of Fairfield upon the railroad company. (2) The court erred in that it overruled the claim of the railroad company that under section 3489 of the General Statutes it was the intent of the law that a portion of the expense of removing the grade crossings should be assessed upon the town in a case like the one at bar; and that the court had full power and ought to assess a portion of the expense upon the town. (3) The court erred in that it ruled that the power to apportion the expenses was a discretionary power, and in finding that, under the facts as found, the railroad company ought to bear the whole expense, and that there should be no apportionment of such expense between it and the town.

According to the finding, many persons pass from the north side of the track of the railroad company, to its Southport station, and to the village and wharves of Southport, on the south side thereof, at a point near the station, on foot and in vehicles, as upon a highway. But in fact they cross as trespassers. The railroad company has the right and power to prevent such crossing. Upon it...