City of New Haven v. New Haven & D. R. Co.

• Decision Date: 12 September 1892
• Citation: 25 A. 316,62 Conn. 252
• Court: Connecticut Supreme Court
• Parties: CITY OF NEW HAVEN v. NEW HAVEN & D. R. CO. et al.

25 A. 316

62 Conn. 252

CITY OF NEW HAVEN

v. NEW HAVEN & D. R. CO. et al.

Supreme Court of Errors of Connecticut.

Sept. 12, 1892.

Appeal from superior court, New Haven county; F. B. Hall, Judge.

Action by the city of New Haven against the New Haven & Derby Railroad Company and the Housatonic Railroad Company to enforce a contract made by defendant companies with plaintiff to recompense certain property holders in the city for damages caused by partially closing several streets over which defendants' railroad extended. From an order sustaining defendants' demurrer to the amended complaint, plaintiff appeals. Affirmed.

C. S. Hamilton and C. T. Driscoll, for appellant.

S. E. Baldwin and W. Trumbull, for appellees.

FENN, J. In this action, the defendants, the New Haven & Derby Railroad Company and the Housatonic Railroad Company, having severally demurred to the amended complaint, which demurrers were sustained by the superior court, the plaintiff, by its appeal, has brought before this court the question of the sufficiency of such complaint. The material allegations are as follows: The New Haven & Derby Railroad Company, having operated and located its railroad tracks through a portion of the city of New Haven, which tracks crossed at grade certain streets in the city, the company desired to make changes for its benefit, in order to obtain which they desired, subject to the approval of the railroad commissioners, to close, in part, said streets, and thereby cut off travel on the same where they crossed their tracks. Such changes, if made, would greatly injure, damage, and cut off from public travel and convenience the property of many persons located on or near said streets, among whom are the persons named in the complaint; and the company knew that, unless provision was made by it for recompensing the persons whose property would be so injured by such closing, the city of New Haven, on behalf of such persons themselves, would strenuously oppose such change, and that, with such opposition, it would be impossible to obtain the same, for which it had preferred its petition to the railroad commissioners, notice of which had been given the city, and which application to the commissioners was heard by the court of common council, and was pending before it. In order to obtain and procure from this joint special committee a recommendation to the court of common council of the passage of a vote that the city would make no opposition to the approval by the railroad commissioners of the location and proposed change desired, the railroad company, on February 16, 1888, executed and delivered to the city a written contract, under seal, which was procured, made, and entered into, at the request of the owners of said property, and for their benefit and protection, by which the railroad company, in consideration of the joint special committee having unanimously recommended to the court of common council *he passage of the vote that the city would make no opposition to the approval by the railroad commissioners of said location, did covenant and agree to and with the city that it would refer any and all claims for damages arising from the discontinuance of the streets, as described in said location, which might be made by any party or parties against the company, whether the parties did or did not own real estate abutting on said parts of the streets, to the final, decision and award of three disinterested arbitrators, to be appointed by any judge of the superior court on due notice to the parties claiming such damages, and would prepare all necessary papers to secure any such arbitration at its sole expense, free of charge to the parties claiming damages, and would abide by and perform whatever award might be adjudged to any party for any excess of damages over benefits that he might sustain according to such award within 30 days from the award, together with the fees of the arbitrators, as directed by the award. The committee did recommend the passage of such vote. The report was accepted by the common council, and approved by the mayor. Afterwards, on October 15, 1888, the railroad commissioners did, upon the application of said company, approve in writing, with a single alteration, an amended location, pursuant to which the company closed two of the three streets named, and bridged the other. By reason of these changes certain property owners, named in the complaint, were, and their property was, greatly damaged and injured, and cut off from public access and travel, being the property owners for whose benefit and at whose request said contract was made, all of whom bad just claims for damages which ought to have been paid by the company, but the company refused to pay upon request, or to submit said claims to arbitration, or to abide by their said agreement. Afterwards, in August, 1889, the company leased its property and franchises to the other defendant, which assumed all its liabilities and obligations, and is now liable there for. Afterwards, on May 9, 1890, the parties claiming such damages, and at whose request and for whose benefit the contract was made, having demanded payment, the plaintiff preferred its application in their behalf, at their request, and for their benefit, for the appointment of arbitrators, to a judge of the superior court, giving due notice, and said judge made such appointment, and the arbitrators, so appointed, heard the claimants, who proved their claims before them; and afterwards, on November 7, 1890, the arbitrators made their award, awarding to the different persons named in the complaint, some 35 in number, the several sums therein stated, amounting in the whole to the sum of $22,867, the fees of the arbitrators for said service being $384. The arbitrators reported said awards to the court of common council of the city...