Doolittle v. Selectmen of Branford

• Decision Date: 31 December 1890
• Court: Connecticut Supreme Court
• Parties: DOOLITTLE, State's Attorney v. SELECTMEN OF BRANFORD.

22 A. 336

59 Conn. 402

DOOLITTLE, State's Attorney

v. SELECTMEN OF BRANFORD.

Supreme Court of Errors of Connecticut.

Sept 12, 1890.

Appeal from superior court, New Haven county; Robinson, Judge.

Application by Tilton E. Doolittle, state's attorney, for mandamus to compel the selectmen of the town of Branford to perform the order of the railroad commissioners concerning the removal of certain grade crossings of certain highways over the New York, New Haven & Hartford Railroad Company. The writ was granted, and the selectmen appeal.

H. Stoddard and J. W. Bristol, for appellants.

L. Harrison, for appellee.

ANDREWS, C. J. For fully 20 years the legislature of this state has been devising laws to prevent the destruction of human life at railroad crossings of highways. Disasters, frequent, and sometimes appalling, have been happening at such crossings ever since railroads have been built, and the legislature has been seeking from time to time to frame enactments by which they should be avoided. These acts appear in the Public Acts of 1870, c. 125; Acts 1873, c. 67; Acts 1876, c. 36; Acts 1877, c. 8; Acts 1883, c. 107, and Acts 1884, c.100. The act of 1884 intended to make provision for the entire removal of all the grade crossings in the state with all convenient rapidity. It gave full power to the railroad commissioners, and virtually said to them: "Make such alterations of highways at their crossings of railroads at grade as you shall deem best, but have the grade crossings removed." In 1888 the provisions of all the then existing acts were brought together into one section, which is section 3489 of the General Statutes; and this has been further reinforced and made emphatic by the act of 1889. c. 220. In the light of these reiterated expressions of the legislative will it is undeniable that it has become the settled policy of the legislature to abolish grade crossings. This policy has been recognized and seconded by the courts in numerous cases. Town of Suffield v.Northampton Co., 53 Conn. 367¹; Woodruff v. Catlin, 54 Conn. 277, 6 Atl. Rep. 849; Railroad Co. v. City of Waterbury, 55 Conn. 19, 10 Atl. Rep. 162; Town of Westbrook's Appeal, 57 Conn. 95, 17 At). Rep. 368; Town of Fairfield's Appeal, 57 Conn. 167, 17 Atl. Rep. 764. Of the act of 1884 this court, in Town of Westbrook's Appeal, at page 104, 57 Conn., and page 372,17 Atl. Rep., said: "Its object is to change or remove certain conditions, lawful in themselves, but which have become a source of danger to life and property. The remedy consists in requiring those charged with the duty of maintaining highways to change the conditions, and hereafter discharge their duties in such a manner as to avoid the danger." And of the purpose of the acts this court, in Railroad Co. v. City of Waterbury, supra, at page24,55 Conn., and pagel63,10 Atl. Rep., said again: "In fact, such crossings are public nuisances, dangerous to human life; and no man has a vested interest in the creation or continuance of such a nuisance. In the exercise of the power of protecting human life the legislature may at anytime, and without notice, abate it or prevent its existence." The act of 1884 is as follows: "The railroad commissioners may, when in their opinion public safety requires an alteration of any highway crossed at grade by a railroad, after a hearing had upon such notice as they shall deem reasonable to the railroad company owning or operating said railroad, and to the selectmen of the town, mayor of the city, or warden of the borough within which said highway is situated, and to the owners of the land adjoining said crossing, order such alterations in such highway as they shall deem best, and shall determine and direct by whom such alterations shall be made, at whose expense, and within what time: provided, that in no case shall more than one-half the expense be paid by the town, city, or borough aforesaid: and provided, further, that such alterations as are made at the primary instance of the railroad commissioners shall not be ordered at the rate of more than one a year on any one railroad, except in the case of railroads now having a double track throughout their entire length." Pursuant to this statute the directors of the New York, New Haven & Hartford Railroad Company, on the 5th day of August, 1887, made their petition in writing to the railroad commissioners, alleging that the Shore Line Division of their railroad was, in the town of Branford, crossed at grade by three highways; and that public safety required certain changes in such highways, to the end that the grade crossings might be removed. The railroad commissioners, after due notice and hearing, ordered certain changes in the highways, and that they should be carried over the track of the railroad by a bridge; and further ordered "that said town shall procure the right of way for, lay out, and construct the proposed highways on the south of said railroad, and pay all the expenses thereof, including all land damages; and that said company shall build said bridge, with the approaches thereto and abutments of the same; and that on the completion thereof said town shall pay said company the sum of fifteen hundred dollars towards the cost of constructing said abutments, bridge, and approaches." This order was duly made known to the railroad company and to the town and the selectmen. No appeal was taken therefrom to the superior court by any of the persons entitled to take such an appeal. It was, at any rate, acquiesced in by the town; and, if we may believe the finding of the commissioners, it was agreed to by the selectmen. Afterwards, the town and its selectmen having refused and neglected to do any of the things so required by the order to be by them done, the state's attorney for New Haven county made application to the superior court in that county for a writ of peremptory mandamus, as set forth in the record. An alternative writ was granted, and was duly served and returned. The parties appeared, and various proceedings were had thereon in court, such that on the 13th day of May, 1890, the court ordered that a peremptory writ of mandamus do forthwith issue, directed to the defendants, commanding them to procure the right of way for, lay out, and construct the highways on the south side of the railroad, in a manner directed in the order of the railroad commissioners. From this order of the superior court this appeal was taken by the defendants. The appellants in their brief have grouped all their grounds of error under five heads. It will be convenient to consider these several heads in a different order from that in which the appellants have arranged them.

1. The appellants' second ground of error is "that the railroad commissioners had no power to pass the specific order in question." It is objected that the order was void, for the reason that the commissioners ordered the town to pay the gross sum of $1,500 "towards the cost of the bridge, abutments, and approaches." The statute authorizes the commissioners to determine "at whose expense" the alteration shall be made, and this court has twice decided that there might be an apportionment of the expense between the railroad company and the town, or that the whole might be assessed on either. It would seem that the order to pay a gross sum is not invalid. It is true that the expenses to be determined by the commissioners must be the "actual" expenses, and not conjectural expenses. But if the expense is actual, the determination by whom it shall be paid may as will be made before as after the payment it is true also that it would not be within a their power to direct, the town to pay sum greater than one-half the whole cost of the bridge, etc. The items that would enter into the cost of the bridge, its abutments, and approaches, would be known before any of the work was done with almost the same certainty as after it was finished. The number of yards of earth filling or excavation, the amount of masonry, and the quantity of iron, and the price of each, are all within the knowledge of the commissioners. Having full means of ascertaining the entire actual cost, it is not to be presumed that they ordered the town to pay a greater sum than the one-half of such entire cost. It is further objected that "the order relative to the location, building, laying out, and obtaining the right of way for the highways in question was beyond the power of the railroad commissioners." It cannot be claimed that the commissioners have authority under the statute above recited, or by any other statute, to lay out any new highway as an independent matter. They have no such power. They cannot interfere with the general power of towns and selectmen to lay out all the needed new highways within their own limits; but they do have power to deal with existing highways. They may order a change in the location of any existing highway when such change becomes necessary to the removal of a grade crossing, although the change so ordered of necessity involves the construction of short portions of new highway,—such being regarded as alterations of the old, and not as the establishment of new, ways. Town of Suffield V.Northampton Co., 53 Conn. 367²; Town of Fairfield's Appeal, 57 Conn. 167, 17 Atl. Rep. 764. Wethlnk the order of the railroad commissioners was valid, and that there is a clear right in the public to have it enforced.

2. The defendants' fourth ground of error is that "the proper and necessary parties are not before the court. (1) because this proceeding is prosecuted in the name of the state's attorney alone, and the railroad company is not the party plaintiff, although the only party in interest; (2) because the town of Branford is not the party defendant, although the order is directed to the town, and not to the selectmen; and (3) because, since the Institution of this action, one of the original defendants has ceased to be a selectman, and another has been elected in...