City of Hartford v. Day

• Decision Date: 02 April 1894
• Citation: 29 A. 480,64 Conn. 250
• Court: Connecticut Supreme Court
• Parties: CITY OF HARTFORD v. DAY.

29 A. 480

64 Conn. 250

CITY OF HARTFORD

v. DAY.

Supreme Court of Errors of Connecticut.

April 2, 1894.

Appeal from superior court, Hartford county; Samuel O. Prentice, Judge.

Application of the city of Hartford to Hon. Samuel O. Prentice, judge of the superior court, to approve a highway layout within 100 yards of a railroad track, under the provisions of Gen. St § 2700.¹ Approval granted. Caroline E. Day, an interested property owner, appeals. Affirmed.

Charles E. Perkins and Arthur Perkins, for appellant. Timothy E. Steele, for appellee.

ANDREWS, C. J. The object of laying out a public highway is to accommodate public travel,—to meet the demands of common convenience and necessity between the given termini. Clark v. Town of Middlebury, 47 Conn. 334. The question involved must be regarded as to the common convenience and necessity of a highway in that locality. Terry v. Town of Waterbury, 35 Conn. 533. Whenever a new highway is proposed to be laid out by the selectmen of a town, the common council of a city, or a committee of the superior court, the general question always must be: Does common convenience and necessity require a highway at substantially this place? The expression, "common convenience and necessity," is often found in the statutes of this state and in our judicial decisions, and is applied to various subjects of a common and public nature. It is an expression not very easy to define, but its meaning may be sufficiently well understood by considering the elements of which it is composed. When it is applied to a new highway, one element which properly enters into it is the one of expense,—the expense of laying out and constructing the highway, and the expense of maintaining it after it is laid out. Townsend v. Hoyle, 20 Conn. 7; Perkins v. Town of Andover, 31 Conn. 601; Hoadley v. Town of Waterbury, 34 Conn. 38; Congdon v. City of Norwich, 37 Conn. 414; Howe v. Town of Ridgefield, 50 Conn. 594. It is not, however, the simple question of cost that is to be considered in such cases, but the mixed question of cost compared with the ability of the municipality upon which the expense is cast to bear it. Thus, as it was said in Bristol v. Town of Branford, 42 Conn. 323: "The town upon which some portion at least of the cost of constructing the proposed highway might possibly be thrown, and upon which the duty of keeping the same in repair would rest in the future, had a right to offer evidence as to the expense of construction and reparation. To give this evidence its proper weight the ability or inability of the town should be known. There can be no fixed rule for all cases; the weight of the burden to be borne and the ability of the town to bear it are to be considered in relation to each other. A town with a grand list of $50,000,000 might quite conveniently, and even profitably to itself, construct a highway at a cost of $30,000, while it would be unreasonable to impose such an expenditure upon a town with a grand list of only $1,000,000. It was the plain duty of the committee to consider the cost of building and maintaining this road, and the ability of the town, in determining the question of common convenience and necessity." This is the rule which a committee appointed by the superior court to lay out a highway should follow. The finding in the present case shows that the judge did, in substance, do just what a committee of the superior court would by law have been required to do. He considered the question of expense as compared with the...