Canastota Knife Co. v. Newington Tramway Co.

CourtSupreme Court of Connecticut
Citation69 Conn. 146,36 A. 1107
Decision Date06 April 1897
36 A. 1107
69 Conn. 146


Supreme Court of Errors of Connecticut.

April 6, 1897.

Appeal from superior court, Hartford county. Application by the Canastota Knife Company against the Newington Tramway Company and others for an injunction against the construction of an electric street railway on a highway, of the fee in which plaintiff was the owner. From a judgment in favor of defendants, plaintiff appeals. Error.

Edward D. Robbins, for appellant.

Charles E. Perkins and Frank L. Hungerford, for appellees.

BALDWIN, J. It is the prevailing doctrine in the United States, and was settled, as respects this state, in the case of Imlay v. Railroad Co., 26 Conn. 249, that the location of an ordinary steam railroad upon a highway imposes an additional burden upon the soil, for which the owner of the fee is entitled to demand compensation. The Imlay Case was put upon the ground that no substantial, practical, or even technical identity exists between the use of land for a highway and for a steam railroad. One of the differences pointed out by the court was that the railroad usually was, and always might be, so made as to be inconvenient and even impassable to ordinary travelers, the construction of its embankments and bridges being unadapted to the use of such vehicles as ply over a common road. Another was that every individual had an equal right of passage over a highway, and therefore that all must use this right so as not to prevent or obstruct its exercise by others, while a railway could only be built and operated by virtue of the possession of a special privilege, independent of and derogating from the general privileges belonging to the public, and which created a perpetual right against the proprietor of the fee in favor of a person—the proprietor of the railroad—to whom before he bore no legal relations whatever. It was pointed out that the discontinuance of a highway traversed by such a railroad would still leave the land subjected to the burden of supporting and serving the latter, since its location upon the highway was made under an express and independent grant by the state of a new and distinct ease

36 A. 1108

ent. The essence of the decision was that the grant of a railway franchise by the legislature, authorizing the occupation of land subject to a highway in such a manner as substantially to interfere with the proper uses of a highway, or substantially to change them by introducing another, not practically identical with the original ones, was the bestowal of a power, the exercise of which charged the land with a new servitude.

In determining what are the uses, of a highway under the common law of Connecticut, and whether its occupation by an electric street railway can be one of them, the preamble of our earliest statute upon that subject speaks with some authority. It declares that "the mainteineing of high wayes in a fitt posture for passage according to the severall occasions that occurre, is not onely necessary for the comfort and safety of man and beast, but tends to the proffitt and advantage of any people, in the issue." Code 1650, tit. "Highe ways"; 1 Col. Rec. 527. This court has said that in these words is found a statement of the principles which should govern, and ever have governed, the legislation of this state as to the maintenance of highways, and that, as they have regard not only to providing for the comfort of man and beast, but for the profit and advantage of the people, they must be held to have originally "contemplated all such improvements in structure and grade as 'occasions,' occurring in consequence of the advance and growth of the country, and particularly of populous and growing cities, should make necessary." New Haven v. Sargent, 38 Conn. 50, 54; Shelton Co. v. Borough of Birmingham, 61 Conn. 525, 24 Atl. 978. The common law of Connecticut is thus somewhat more favorable to the rights of the public, as against the owner of the soil, than the common law of England. There no one, except the owner of the fee, can use a highway for any other purpose than that of passage, or what may be subservient to that, unless he can claim under some special franchise. Reg. v. Pratt, 4 El. & Bl. 860, 865; Goodson v. Richardson, 9 Ch. App. 221. Here an individual can go or linger upon one solely from motives of curiosity. Bunnell v. Bridge Co., 66 Conn. 24, 36, 33 Atl. 533. Whoever holds property subject to a public trust holds it subject, to the same extent, to public control. The owner of the fee in a highway holds his estate subject to a public right, which is equally, and for similar reasons, subject to public control so far as may be necessary to protect the public in the full enjoyment of whatever belongs to them. This power of control resides primarily in the general assembly. It is their judgment that street railroads furnish a proper means of accommodating public travel on highways; and the judicial department of the government will not pronounce charters granted for their construction to be invalid because they make no provision for additional compensation to the owners of the soil, unless forced to the conclusion that to give them effect would necessarily sanction an invasion of private right. In Goodson v. Richardson, 9 Ch. App. 221, Lord Chancellor Selborne remarked that "parliament is, no doubt, at liberty to take a higher view, upon a balance struck between private rights and public interests, than the court can take." The same thing is true of our general assembly. The reasonableness of its action in any matter within its appropriate jurisdiction is not a matter of judicial question, unless it be plainly apparent that some constitutional right or fundamental principle of society has been invaded. Bissell v. Davison, 65 Conn. 183, 192, 32 Atl. 348.

A street railway, such as that authorized by the charter of the defendants, differs from the ordinary railway running from one state or town to another, part of which may chance to be located on a highway, in certain essential characteristics. Its tracks conform to the established grade of the highway. It has no exclusive privilege as to their use. Laufer v. Traction Co., 68 Conn. 475, 38 Atl. —. Its mode of using the street does not necessarily or naturally render that part of it which it occupies, whether by its tracks or its poles and wires, impassable or seriously inconvenient for ordinary travel. Such a street railroad may be, and up to the present time such roads have usually been, so constructed and so used and operated as to be distinguished from the ordinary steam railroads in every one of the particulars stated in the Imlay Case, though undoubtedly electric roads do approach steam roads more and more in construction and in the manner of operation. But as yet there is a substantial identity in many particulars between the use of a highway by an electric car and that by an ordinary vehicle, both moving upon the same grade. The test whether the land in the street is, by the imposition of the tracks, subjected to a new use, must in some measure be a question of degree. So far as the change of power is concerned, the substitution of electricity for animal power, to draw cars running upon surface tracks, is no greater innovation on the ancient uses of a highway than the introduction of the bicycle, with its complicated arrangement of mechanical contrivances for multiplying motion and increasing speed, or the horseless carriage, operated by the use of petroleum. Steam carriages, with broad tires, and sometimes running heavily laden trains of two cars and a locomotive, have been used on the solid and level highways of England for many years, under appropriate regulations, prescribed by act of parliament (41 & 42 Vict. c. 77), to secure the public safety. In some of the great cities of Europe, tramways, built into the streets, have been in use for centuries as a means of facilitating ordinary teaming. They are constructed of long and narrow slabs of marble, laid in parallel lines, with cobble stones between, on which the horses find a secure footing, while the wagons they

36 A. 1109

draw run easily over the smooth marble. Biots Manuel du Constructeur de Chemins de Fer (page 4). Such marble tracks do not sliffer in kind from steel tracks, and it is a matter of common knowledge that teamsters often drive upon the rails of street railroads, when the cars are not passing over them, for convenience in hauling heavy loads,—a use to which it would be impossible to put the differently shaped rails of the ordinary steam railroad. Streetcar tracks, therefore, in some degree, serve to promote the common right of passage over the highway, while the "standard" railroad track never can. The electric railway, like every other, can be laid and operated only under a special franchise, but it is one which, though independent of, does not necessarily derogate from, the general privileges belonging to the public; for, if the road be constructed and operated with due regard to the convenience of ordinary travelers, they can use every portion of the highway substantially as they did before. While a car is occupying or approaching any particular portion of the tracks, other travelers must, indeed, give way; but it is only because they can turn out, and the car cannot. Without any such absolute necessity, a loaded team must, under our laws, turn aside when overtaken on the road by a lighter vehicle. This statute (Gen. St. § 2691) has been in force for a hundred years, and its validity has never been challenged. Hotchkiss v. Hoy, 41 Conn. 568. In the Imlay Case, reliance was also placed on the right to continue the operation of a steam railroad built upon a highway, although the highway itself should be legally discontinued. Assuming that right to exist, no such doctrine can be asserted in respect to a street railway of any description. That is an incident of the street. Its main...

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