Cadwell v. Connecticut Co.

• Decision Date: 16 May 1912
• Citation: 83 A. 215,85 Conn. 401
• Court: Connecticut Supreme Court
• Parties: CADWELL v. CONNECTICUT CO.

83 A. 215

85 Conn. 401

CADWELL v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

May 16, 1912

Appeal from Superior Court, Hartford County; Gardiner Greene, Judge.

Action by William H. Cadwell against the Connecticut Company. From a pro forma judgment sustaining a demurrer to the complaint plaintiff appeals. Reversed and remanded.

The action was to recover damages by reason of the defendant's operation of its electric street railway over the plaintiff's land within the highway and in front of his premises. The complaint alleges the plaintiff's ownership and possession of a tract of land in New Britain bounded on one side by West Main street. The remaining allegations are the following: " (2) Running between the town of Plainville and the town of New Britain there has been constructed an electric railway, the track of which is built with T-rails, and the cars of which are operated by the use of said track and certain poles and wires. (3) A part of said track built with T-rails, one of said poles and certain of said wires are located upon and over a part of said land above described, which is covered by a public highway called West Main street. (4) On or about June 1, 1907, the defendant, for the purposes of maintaining said electric railway as described upon said land, and for the further purpose of operating said electric railway upon said land as a common carrier of persons and property by means of street cars, and for the further purpose of operating said electric railway upon said land as a common carrier of property by means of cars which are solely designed for and which carry property exclusively and which do not stop as they run, to take on and discharge said property, and have a station in the town of Plainville, and the town of New Britain at which they stop to take on and discharge said property, unlawfully entered upon that part of said land, above described, which is covered by said public highway called West Main street, and ever since its entry day by day, has maintained said electric railway as described upon said land; and ever since its entry, day by day, has operated said electric railway upon said land as a common carrier of persons and property by means of street cars, and ever since its entry, day by day, has operated said electric railway upon said land as a common carrier of property by means which are solely designed for and which carry property exclusively and which do not stop as they run, to take on and discharge said property and have a station in the town of Plainville and the town of New Britain at which they stop to take on and discharge said property."

Charles H. Mitchell, of New Britain, for appellant.

Lucius F. Robinson and Francis W. Cole, both of Hartford, for appellee.

PRENTICE, J. (after stating the facts as above).

Acts done within the limits of a highway may work an actionable injury to the property rights of an abutting proprietor and occupant by virtue of either his ownership of the fee of the land covered by the highway, or his ownership and possession of the abutting property. Cadwell v. Connecticut Ry. & Ltg. Co., 84 Conn. 450, 452, 80 A. 285. In the former case the acts may constitute a trespass. This is the case whenever the acts, being without authority, or in excess of authority, are such as impose an additional servitude upon the land covered by the highway. Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 161, 36 A. 1107; Norwich City Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19; Nicholson v. New York & N.H. R. Co., 22 Conn. 74, 56 Am.Dec. 390; Munson v. Mallory, 36 Conn. 165, 172, 4 Am.Rep. 52. In the latter case the injured party has his remedy as for a nuisance. Cadwell v. Connecticut Ry. & Ltg. Co., 84 Conn. 450, 454, 80 A. 285.

This action, unlike that last cited, which was also brought by this plaintiff against this defendant, and dealt with the same general situation, is one which belongs to the former class. It seeks redress, as the former did not, for an alleged invasion of the plaintiff's rights as owner of the soil of the highway through certain conduct of the defendant therein which is set out, and claimed to have been without right. The two cases thus have little in common. In the former we were dealing with an alleged nuisance affecting injuriously the rights of the plaintiff as an abutting owner; in the present, with a claimed trespass done to the land within the highway limits.

This complaint is not drafted with precision, in that it does not directly aver either the plaintiff's ownership and possession of the land over which the highway is laid out, or the defendant's invasion of the plaintiff's rights therein by its acts set up. There are, however, allegations from which these averments may well be inferred, and in which it was evidently intended that they should be included, so that the purpose of the pleader to charge a trespass upon the land within the highway through the operation of the recited acts of the defendant in imposing an additional servitude thereon is apparent. Counsel for the plaintiff so interprets his pleadings, and counsel for the defendant accept it as sufficiently alleging a cause of action of that character.

The latter suggests that a cause of action for a nuisance may also be within the purview of the allegations. Plaintiff's counsel makes no such claim, and there appears to be no substantial basis for it. It is quite evident that the averments respecting rails and structures, which the plaintiff makes, and which alone give color to the suggestion that the complaint may be regarded as comprehending a cause of action for a nuisance, were made for no other purpose than as pertinent to the charge that a servitude was being imposed upon the land of the highway in excess of that resulting from the existing highway easement.

We have, then, before us for determination the single question whether or not the allegations of the complaint show the imposition upon the soil of the highway of an additional servitude. In answering this question it is first of all important to know what legislative authority, if any, the defendant had to construct and operate an electric street railway in front of the plaintiff's premises. The complaint is silent upon this subject, and unless we can gather adequate information upon it through the exercise of that judicial knowledge which we have of its charter rights, the defendant will be left in the position of one who invades a highway with a street railway without legislative authority. If that is the position which the defendant occupies before the court under its demurrer, it is clear that it was improperly sustained. It is not easy to discover how it can escape from this position with its inevitable result, since the charter informs us only that it has legislative authority to construct and operate for the carriage of both persons and property its tracks through a portion of West Main street. Where that portion is in relation to the plaintiff's property we are not told, and neither legal presumptions, nor section 3840 of the General Statutes, suffice to supply the deficiency.

If, however, it be assumed that the defendant has constructed and operated its road in front of the plaintiff's property under such conditions as to entitle it to the full benefit of the charter and statute authority to utilize it for the transportation of passengers and property, as doubtless is the fact, we are under the necessity of examining the allegations to learn whether they set up any conduct on the defendant's part outside of the limits of the authority thus attempted to be conferred, or within those limits, but without the power of the General Assembly to confer in the absence of compensation to landowners.

The allegation that it has constructed its tracks with T-rails, and that its cars are operated upon such tracks and by the use of certain wires and poles, in the absence of further information may be dismissed from present consideration. It is true that an additional servitude may result from methods of construction and operation, but the bald facts here stated are altogether insufficient to establish such a condition as that principle contemplates. Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 159, 36 A. 1107; Nieman v. Detroit Suburban Co., 103 Mich. 256, 260, 61 N.W. 519: Newell v. Minneapolis, L. & M. Ry. Co., 35 Minn. 112, 27 N.W. 839, 59 Am.Rep. 303: Mordhurst v. Ft. Wayne, etc., Co., 163 Ind. 268, 71 N.E. 642, 66 L.R.A. 105, 106 Am.St.Rep. 222, 2 Ann. Cas. 967.

The other conduct complained of is the unlawful entry upon the land of the highway for the purpose of maintaining its electric railway, of operating this railway upon said land as a common carrier of persons and property by means of street cars, and of operating said railway upon said land as a common carrier of property by means of cars designed solely for and carrying property exclusively, and which run without stopping between termini located in different towns, which termini are the only points where what is carried is either taken on or discharged, and the continued doing in fact of those things for the period of several years prior to the commencement of the action.

Here are three distinct grounds of complaint. The first, that the defendant is maintaining in the street an electric street railway using poles and wires in its operation and T-rails for its tracks, calls for no extended consideration. The Canastota Knife Company Case, supra, effectually disposes of any contention that the construction and operation according to customary methods, and without especial features creating exceptional conditions, of an electric street railway having its rails laid on a level with the surface of the...