Cullen v. N.Y., N. H. & H. R. Co.

• Decision Date: 28 May 1895
• Court: Connecticut Supreme Court
• Parties: CULLEN v. NEW YORK, N. H. & H. R. CO. et al. TALLMADGE et ux. v. SAME.

33 A. 910

66 Conn. 211

CULLEN

v. NEW YORK, N. H. & H. R. CO. et al.

TALLMADGE et ux.

v. SAME.

Supreme Court of Errors of Connecticut.

May 28, 1895.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Actions by Jeremiah Cullen and Oscar Tallmadge and wife against the New York, New Haven & Hartford Railroad Company and the city of New Haven to recover damages to house lots owned by them, respectively, by reason of the closing of a portion of Perry Path, a street or highway in New Haven, on which such lots abutted. Ferry Path intersected two other streets, which crossed each other at right angles, diagonally, forming with them a triangle. That portion of it lying between such intersections, and on which the property of the plaintiffs abutted, was vacated or closed by order of the railroad commissioners, on petition of the defendant railroad company, to obviate a grade crossing of the railroad track. The commissioners' order required the expense of the change in the street to be paid jointly by defendants herein, the railroad company and the city. There was judgment in each case for the plaintiff, and defendants appeal. Affirmed.

George D. Watrous, Edward G. Buckland, and William H. Ely, for appellants.

Henry

G. Newton, Philip P. Wells, and James P. Bree, for appellees.

BALDWIN, J. Two claims are made in support of these appeals: First, that, under the order of the railroad commissioners, only so much of Ferry Path was or could he closed as is included in the location of the railroad at the point of crossing; and, second, that, however this may be, the order was made in the exercise of the police power of the state, to remove a source of public danger, and therefore any resulting damage to private individuals is damnum absque injuria.

The application to the commissioners was founded on chapter 36 of the Public Acts of 1876, as amended by chapter 8 of the Public Acts of 1877 (Gen. St. §§ 3489-3491). These statutes provided that the directors of any railroad company whose road crosses or is crossed by a highway might bring a petition to the railroad commissioners, "therein alleging that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or railroad, or the removal of obstructions to the sight at such crossing, and praying that the same be ordered." Notice was then to be given to the owners of the land adjoining such crossing, and, after due hearing, the commissioners were to "determine what alterations or removals shall be made, by whom done, and at whose expense." In case the company could not "agree with the owner of the land or other property to be removed or taken under the said decision of the railroad commissioners, the damages" were to be "assessed in the same manner as is provided in case of land taken by railroad companies; the expense of such assessment to be paid in the same manner as the expense of the alterations." An appeal to the superior court, to be taken within 20 days, was given to any person aggrieved by the decision. The charter of the city of New Haven, which was enacted in 1881, provides (section 31) that the court of common council "shall have sole and exclusive authority and control over all streets and highways, and over all parts of streets and highways now or hereafter existing within the limits of said city, and shall have sole and exclusive power to lay out, make, or order new highways and streets within the limits of said city, and to alter, repair, and discontinue all highways and streets now or hereafter existing within the limits of said city." This section must be read in connection with the statutes existing at the date of its enactment which relate to the location of railroads and the powers of the railroad commissioners. It has always been the policy of the state to allow railroad companies, with the approval of the railroad commissioners, to lay out and construct their roads in the best possible line, and, if necessary for this purpose, to change the course of existing highways. Gen. St. §§ 3476, 3480, 3488, 3461. Such a change may result in the discontinuance of a part of a highway, and the substitution of a new section of road, or the diversion of travel upon another existing highway. Waterbury v. Railroad Co., 27 Conn. 146, 156; Suffield v. New Haven & N. Co., 53 Conn. 368, 5 Atl. 366.

These provisions in the general laws control, so far as they apply, the effect of section 31 of the city charter. State v. Railroad Com'rs, 56 Conn. 308, 15 Atl. 756. The same reasons which induced the legislature to put in the hands of railroad companies the power, with the approval of the railroad commissioners, to alter or discontinue highways, in order to secure the best location for a railroad, apply also and with equal force to the case of an alteration or discontinuance of a highway, in order to promote the safe operation of a railroad. The act of 1876 appears to us to have been framed with this view. A steam railroad is a road in the safe maintenance and operation of which the whole state is directly interested. It is therefore put under the supervision of a board of state officers, with extensive powers. Their authority sometimes trenches upon what would otherwise be within the exclusive jurisdiction of some particular municipality; and, wherever it does, the latter must give way, for so only could any general policy of administration be carried out. The proper regulation of railroads, in their course through different towns, is a matter which is necessarily of more than local concern. As highways must give place to railroads where both cannot occupy the same ground, so municipal control and management of highways must yield, at times, to state control and management, when safety of railway operation is in question. It would deprive the statute for the removal of grade crossings, which is under consideration, of much of its efficiency were it to be construed as authorizing the discontinuance, under an order of the railroad commissioners, of only so much of a highway as lies within the limits of the railroad location. To accomplish the best results, it is plainly necessary that they should have...