Coppola v. New York, N. H. & H. R. Co.

• Decision Date: 03 January 1956
• Court: Connecticut Supreme Court
• Parties: Donald COPPOLA et al. v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY et al. Supreme Court of Errors of Connecticut

Page 730

119 A.2d 730

143 Conn. 109

Donald COPPOLA et al. v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY et al.

Supreme Court of Errors of Connecticut.

Jan. 3, 1956.

Arthur Levy, Jr., Bridgeport, with whom, on the brief, was Irwin E. Friedman, Bridgeport, for appellants (plaintiffs).

W. Bradley Morehouse, Bridgeport, for appellee (defendant the Stratford Industrial Corp.).

Robert G. Fracasso, New Haven, with whom, on the brief, was Thomas J. O'Sullivan, New Haven, for appellee (named defendant).

Louis Weinstein, Asst. Atty. Gen., with whom, on the brief, was John J. Bracken, Atty. Gen., for appellee (defendant public utilities commission).

Raymond W. Ganim, Bridgeport, with whom, on the brief, was Henry J. Lyons, Bridgeport, appeared for appellee (defendant town of Stratford).

Hugh A. Hoyt, Bridgeport, joined in the brief in behalf of the appellee (defendant Stratford Chamber of Commerce).

Before INGLIS, C. J., WYNNE and DALY, JJ., and MELLITZ and SHANNON, Superior Court Judges.

INGLIS, Chief Justice.

On August 26, 1954, the public utilities commission, acting pursuant to § 5520 of the General Statutes, ¹ approved a proposal set for in a petition made to it by the town manager and town attorney of Stratford, pursuant to the direction of the town council of that town, for authority to construct an industrial sidetrack at grade across Stratford Avenue, Avon Street, Moffett Street, Mead Street, Stag Street and Great Meadows Road in the town of Stratford, subject to later approval by the commission of final plans and methods of construction. From this decision the plaintiffs, owners of land used as a pleasure park fronting on Stratford Avenue and bounded by the right of way of the proposed sidetrack where it would cross that highway, appealed to the Superior Court. The court rendered judgment dismissing the appeal.

At the hearing held by the commission after due notice, evidence was presented which warranted it in finding facts which may be briefly summarized as follows: The proposal for the construction of the sidetrack has been under discussion for a great many years. Recently, the Stratford Industrial Corporation, a private corporation, acquired the easements necessary for the construction of the sidetrack. Its existence would open for development between 1000 and 1500 acres of land zoned for light and heavy industry, and there is need for additional land available for that use. The construction of the sidetrack would be of great benefit to the entire Bridgeport and Stratford area.

The principal controversy both before the commission and in the trial court was over the question whether the sidetrack should be permitted to cross Stratford Avenue at grade. That highway is a part of route 1 and is heavily traveled. With special reference to that crossing, the commission found that because of the proximity of the main line to Stratford Avenue at the proposed location of the sidetrack it would be impracticable to construct the sidetrack in such a manner as to cross Stratford Avenue by means of either an underpass or an overpass.

The appeal to the Superior Court was taken pursuant to § 5427 of the General Statutes. Upon such an appeal, the only question before the court is whether the commission acted illegally or in excess or abuse of its powers. Kram v. Public Utilities Commission, 126 Conn. 543, 548, 12 A.2d 775; City of Norwalk v. Connecticut Co., 88 Conn. 471, 478, 91 A. 442.

The main contention of the plaintiffs is that the action of the commission was illegal because the avowed policy of the state is, they claim, to avoid and eliminate railroad crossings at grade over highways. To support their claim that this is the public policy of Connecticut, they rely on the fact that there are several statutes on the books authorizing the commission to direct the elimination of grade crossings. General Statutes, §§ 2252, 5489, 5490, 5502. None of these statutes go so far as to make it mandatory for the commission to order the elimination of grade crossings. By each of them the power is vested in the commission to make such orders relative to elimination or alteration as the commission deems necessary for the protection of the safety of the public. It can hardly be said, therefore, that the statutory law of this state establishes a policy that no crossing at grade should be permitted.

It is true that in Waterbury's Appeal, 84...