City of New Haven v. United Illuminating Co., Inc.

• Citation: 362 A.2d 785,168 Conn. 478
• Parties: CITY OF NEW HAVEN et al. v. The UNITED ILLUMINATING COMPANY, INC., et al.
• Decision Date: 20 May 1975
• Court: Supreme Court of Connecticut

Page 785

362 A.2d 785

168 Conn. 478

CITY OF NEW HAVEN et al. v. The UNITED ILLUMINATING COMPANY, INC., et al.

Supreme Court of Connecticut.

May 20, 1975.

Henry L. Fisher, New Haven, with whom was Alfred J. Onorato, New Haven, and with whom, on the brief, were Thomas F. Keyes, Jr., Corp. Counsel, James M. O'Connor, Charles Angelo and Stephen Darley, New Haven, for the appellants (named plaintiff et al.).

Noel E. Hanf, New Haven, for appellee (named defendant).

Richard L. Barger, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant public utilities commission).

Before HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and LONGO, JJ.

COTTER, Associate Justice.

The plaintiffs have appealed from a judgment dismissing their complaint and denying an injunction and other relief by means of which they sought to effect the removal of a transmission line and supporting structures under construction by the defendant The United Illuminating Company, Inc., hereinafter called UI, within the city of New Haven. ¹

The material facts are as follows: The defendant UI applied to the defendant public utilities commission, hereinafter called the PUC, on October 6, 1970, for permission to construct a 115-KV overhead electrical transmission line within a 45-foot- wide right of way across property owned by the Penn Central Transportation Company, hereinafter called the railroad. This right of way runs generally northerly along the rear of property owned by the plaintiffs New Haven Housing Authority, Bertha Lenart and Anna M. Ruotolo, from UI's Quinnipiac substation to the rear of the Cedar Hill freight yards, all within the city of New Haven. The line was to be placed upon towers to be constructed by UI within the right of way of the railroad and includes the right of way containing the line which was being used for transportation of railroad passengers and freight service. The PUC gave written permission on November 12, 1970, to UI to build the line over the right of way as requested.

Subsequently, on April 12, 1971, UI applied to the PUC to modify its plans for the construction of the proposed line; the application was granted that same day. Finally, on April 18, 1971, UI applied for permission to extend the line and supporting towers from the Cedar Hill freight yards to UI's Grand Avenue substation; the PUC granted this application on April 29, 1971.

In the meantime, the New Haven board of aldermen had passed an ordinance on December 7, 1970, purporting to regulate the location and construction of all overhead electrical transmission lines within the city, including lines located on private property. This ordinance, referred to as § 120 of the code of ordinances of the city of New Haven, was to become effective on Januray 14, 1971.

On July 6, 1971, without conceding the validity of the ordinance, UI submitted a letter formally notifying the board of aldermen of its plans to construct the transmission line. Later, after newspaper advertisements appearing on August 16 and 17, 1971, the board's municipal services committee reported favorably on UI's plans. In addition, a public hearing was held on November 22, 1971, by the committee concerning this report, following further newspaper advertisements of November 7, 8, 9, 19, 20, and 21. Construction of the towers to support the transmission line was initiated by UI in March, 1972; thereafter, on April 3, 1972, the board of aldermen rejected the municipal services committee's report favoring the plans.

The conductors of the transmission line were strung in February, 1973. At the time of the trial the line was in operation to serve UI's Quinnipiac substation.

The action in Superior Court was commenced by the plaintiffs by complaint dated May 15, 1972. The matter was decided on the basis of exhibits in the return, those presented to the court at the hearings and on a stipulation of facts agreed to by the parties. The parties also agreed that the court should hear and decide two issues of law raised by those facts, the court's determination of these issues in favor of the defendants to be dispositive of the case. These two issues were: '(a) Was there a legal requirement that the PUC give notice, or afford a hearing to the City, or other plaintiffs prior to or after rendering its orders (on November 12, 1971, on April 12, 1971, and on April 29, 1971, granting the aforementioned applications submitted by UI)? (b) Is the aforesaid Section 120 of the Code of Ordinances of the City of New Haven within the power of the Board of Aldermen and valid, and was such ordinance applicable to the line in question?' The court decided both issues in favor of the defendants.

I

The plaintiffs have attacked several findings and conclusions which form the basis of the court's determination that the plaintiffs were not entitled to notice or a hearing prior to or after the approval by the PUC of UI's proposed contruction of the transmission line. The court's conclusions are tested by the finding and must stand unless they are legally or logically inconsistent with the facts found or involve the application of some erroneous rule of law material to the case. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 357 A.2d 910. Moreover, this court will not alter findings of fact made by the trial court which are reasonably supported by the evidence or which are based on inferences reasonably drawn from the evidence. Schurgast v. Schumann, 156 Conn. 471, 475, 242 A.2d 695.

A

Initially, the plaintiffs claim they were entitled to notice and a hearing under various Connecticut statutory provisions.

1.

General Statutes § 16-234 provides, in pertinent part: 'No . . . electric light company or association, nor any company or association engaged in distributing electricity by wires or similar conductors or in using an electric wire or conductor for any purpose, shall exercise any powers which may have been conferred upon it to change the location of, or to erect or place, wires, conductors, fixtures, structures or apparatus of any kind over, on or under any highway or public ground, without the consent of the adjoining proprietors, or, if such company or association is unable to obtain such consent, without the approval of the commission, which shall be given only after a hearing upon notice to such proprietors.' (Emphasis added.) The trial court found that the transmission line in question is located entirely within the right of way owned by the railroad and concluded that this right of way is neither a 'highway' nor 'public ground' without the meaning of § 16-234, and that the aforementioned statute did not require that either notice or a hearing be afforded to any of the plaintiffs prior to or after the PUC's approval of the transmission line. The plaintiffs have assigned error in the court's finding and conclusions, and they argue that the statute applied and required such notice and hearing.

The challenged finding, that the transmission line is located entirely within the railroad's right of way, is amply supported by the facts in the stipulation and by the statements appearing in the exhibits. Thus, the stipulation expressly indicates that the first segment of the transmission line was to be constructed 'within a 45-foot wide right-of-way across property owned by the Penn Central Transportation Company.' Furthermore, two of UI's applications to the PUC contain statements that this first segment of the line would be within and along the railroad's right of way. In addition, the third application, which concerns the construction of the second segment of the line, expressly states that all construction would be within the right of way.

The court's conclusion that the railroad's right of way is not a 'highway' as contemplated by § 16-234 also rests on a firm basis. It is well setted that a statute must be applied as its words direct. Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265; Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A. 537. Morever, words and phrases in a statute are construed according to their commonly accepted usage. Klapproth v. Turner, 156 Conn. 276, 280, 240 A.2d 886. Indeed, if the statutory language is clear and unambiguous, there is no room for construction. United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65. To determine the meaning of a word used in a statute, we may look to related statutory provisions for guidance. Bania v. New Hartford, 138 Conn. 172, 176-77, 83 A.2d 165; see also Waterford v. Connecticut State Board of Education, 148 Conn. 238, 243, 169 A.2d 891. Our attention has not been directed to anything which would presuade us that the word 'highway' as used in § 16-234 includes within its reach a right of way such as is owned by the railroad in the present case. The plain meaning of the word 'highway' is '(a) main road or thoroughfare; hence, a road or way open to the use of the public.' Webster's New International Dictionary (2d Ed.) 1179. It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that 'every traveler has an equal right in it with every other traveler.' Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488, 37 A. 379, 381. As the trial court stated in its memorandum of decision, 'the term 'highway' is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.' Stavola v. Palmer, 136 Conn. 670, 683, 73 A.2d 831, 838. Moreover, while chapter 283 of title 16 of the General Statutes, of which § 16-234 is a part, nowhere defines the words 'highway' or 'right of way,' the two terms are differentiated from one another in chapter 279 of title 16. In § 16-96 of the General Statutes, for example, it is stated that '(w)hen any highway or street is altered by any railroad company with the consent of the...