City of New London v. New York, N.H. & H.R. Co.

• Decision Date: 19 July 1912
• Citation: 84 A. 114,85 Conn. 595
• Parties: CITY OF NEW LONDON v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

84 A. 114

85 Conn. 595

CITY OF NEW LONDON v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

July 19, 1912

Appeal from Court of Common Pleas, New London County; Charles L Waller, Judge.

Action by the City of New London against the New York, New Haven &amp Hartford Railroad Company. From a judgment for defendant plaintiff appeals. No error.

Prior to 1807 and down to 1844 there existed a public highway known as Harbor's Mouth road, in length more than 90 rods, extending from a point about 125 feet below the railroad cut at a turn in the road at what is now Pequot avenue, in the city of New London, in a southerly and easterly direction, passing near to the Simmons house and ending at the beach between the Rogers house and the Sprague house. On October 7, 1844, the town of New London voted that the selectmen take up the matter of changing the Harbor's Mouth road from the said turn below the fort gate as far as where the road now comes out at the beach, and, at an adjourned meeting October 21, 1844, voted that the selectmen proceed to make a layout in alteration of the present course of the Harbor's Mouth road from the turn in the road below the fort gate to the beach south of John Rogers' house. On November 13, 1844, the committee appointed to survey and lay out the new road reported to a special town meeting that they had laid out said road beginning about 500 feet south of the fort gate and extending southerly near the northeast corner of John Rogers' house, and thence south to the corner of James A. Keeney's garden, where it intersects the old road; the whole distance being 90 1/2 rods. A proposal of John Rogers to construct the road accompanied this report. The town voted to accept the proposal. This road is now Pequot avenue. The selectmen incorporated in the notice for a town meeting to be held October 6, 1845, the propriety of discontinuing the old road leading to the Harbor's Mouth. And on said day the town voted " that the old road to the Harbor's Mouth be discontinued."

On June 20, 1846, the selectmen duly filed a certificate, reciting that they, with the approbation of the town, as expressed by the vote of its inhabitants at said meeting of October 6, 1845, have discontinued the old road leading from the city of New London to the Harbor's Mouth from the place where the new road intersects said old road at the northerly end to the wall dividing the land of David Sprague and John Rogers; the whole distance being 60 rods more or less. The new road took the place of the old road between these points. The old road referred to in said several votes, proposal, and certificate was the same road, viz., the portion of the Harbor's Mouth road from the turn in the old road southerly to Green's Harbor at a point near the beach south of John Rogers' house and near the corner of James Keeney's garden, between the Sprague and Rogers houses, where it intersects the said Pequot avenue.

Between 1849 and 1851, the New Haven & New London Railroad Company constructed its single-track railroad, and this was double-tracked in 1891. Its roadbed crossed the old Harbor's Mouth road at two points, one at Maple avenue, the locus in question; the other south of this point, and not far from the Rogers house. After the construction of the railroad, the old road south of the Simmons house ceased to be used.

The old road from the Simmons house north was used from the time of the discontinuance to 1881 as a sole way of access between said house and Pequot avenue, at the turn in the old road, by the occupants of the Simmons house and the owners of lands adjoining the railroad on the west, and was a way of necessity, being the northernmost crossing of the old road by the railroad.

The Williams, who owned west of the railroad on both sides of what was afterwards Maple avenue, and the owners of the Simmons property agreed, in about the year 1881, that the use of the old road from the east side of the northernmost crossing should be abandoned by the Simmons, and in place of it they should use the way leading from Pequot avenue to said crossing. There had been a cart path leading from the Dawson Woods, located west of the Maple avenue crossing, to the west side of said crossing prior to 1881, and until 1886 a barway was maintained on the west side of the crossing. A cart path was in use from Pequot avenue to the railroad crossing in 1881.

In 1886 Maple Avenue was laid out and opened for public use from the west side of this crossing to Willetts Avenue. And from this time on the public traveled upon said Maple avenue across said railroad crossing to Pequot avenue. The said Maple avenue crossing, so-called, being the locus in dispute, is in the same place as the northernmost crossing of said railroad, and is the same crossing used in connection with said way by necessity. The defendant railroad has never dedicated any portion of this crossing as a highway and has always maintained planking over this crossing.

Kenealy, Brennan &...