Farmers' Loan & Trust Co. v. Borough of Ansonia

• Decision Date: 01 June 1891
• Citation: 23 A. 705,61 Conn. 76
• Court: Connecticut Supreme Court
• Parties: FARMERS' LOAN & TRUST CO. et al. v. BOROUGH OF ANSONIA.

23 A. 705

61 Conn. 76

FARMERS' LOAN & TRUST CO. et al.

v. BOROUGH OF ANSONIA.

Supreme Court of Errors of Connecticut.

June 1, 1891.

Case reserved from court of common pleas, New Haven county.

This is a proceeding in the nature of an application to the judge of the county common pleas court for a reassessment of benefits on the Birmingham & Ansonia Horse-Railroad Company, for a street improvement. The petition was presented by the Farmers' Loan & Trust Company, a mortgagee of the railroad, and by Albert F. Sherwood, its receiver. The judge appointed a committee, who made a report of their reassessment, against the acceptance of which the petitioners, plaintiffs, remonstrated, and, upon the remonstrance, the case was reserved for the advice of this court. Remonstrance sustained, and report rejected.

T. E. Russell and E. H. Gager, for plaintiffs.

V. Munger, for defendant.

LOOMIS, J. This is a complaint in the nature of an appeal from the doings of the warden and burgesses of the borough of Ansonia in the assessment of benefits against certain property of the Birmingham & Ansonia Horse-Railroad Company. The proceeding is brought by the Farmers' Loan & Trust Company, as trustee under a mortgage of the road and franchises of the company to secure the bondholders, and also in favor of one A. F. Sherwood, as receiver, appointed in July, 1888, in the course of foreclosure proceedings, and who thereupon took possession and operated the railroad as receiver until October, 1889, when it was sold by him to the president of the Derby Horse-Railroad Company for $7,000, and its operation was suspended. The present complaint, or appeal, was made to a judge of the court of common pleas for the county of New Haven, who appointed a committee to hear the case, report the facts, and reassess the benefits. Upon the report of the committee, a remonstrance was filed in behalf of the plaintiffs against the acceptance of the report, and the questions arising thereon were reserved for the advice of this court.

The Birmingham & Ansonia Horse Railroad was constructed and commenced operations in the year 1887, with a track three and a half miles long, running from a point in the village of Derby, through a portion of the borough of Birmingham, and to a point on Main street, in the borough of Ansonia. Under section 10 of its charter, the railroad company was required to conform to the orders and regulations made respectively by the boroughs of Birmingham and Ansonia, and the selectmen of the town of Derby, as might be required, for the paving and grading of the streets through which the road was laid, and "to keep the horse path between the rails of said track, and a space of two feet in width on each side of said track, on said highways and bridges, in good and sufficient repair, without expense to said town, or to either of said boroughs." A portion of Main street, in the borough of Ansonia, was occupied by two railroad tracks. That of the Derby Horse-Railroad Company occupied the center of the street, and four feet easterly of this track was the track of the railroad in question. In consequence of the two railroad tracks, and the constant use of the street for the transportation of very heavy loads, it was found impossible, without great expenditure of time and money, to keep the railroad tracks at grade with the surface of the street, so that the street was, in fact, often left in a dangerous condition through the neglect of this railroad company to keep the same in repair, as required by its charter. For these reasons, during the winter of 1888-89, the borough of Ansonia caused a pavement of Belgian blocks to be laid through Main street, including 1,492 feet of the street occupied by the track of the railroad company; and, on the 23d of April, 1889, caused an assessment for benefits to be made against the company, of $1,992.79, being the actual cost of the pavement between the rails for the distance mentioned. The committee, in reassessing the benefits, adopted the same sum, but their mode of reaching this result will appear by the following extract from their supplemental report: "(3) That, at the time said paving assessment was made, said railroad was being run by said receiver at a loss, the expenses exceeding the receipts by from $200 to $300 a month; that the experience of said railroad up to and during the time it was in the hands of said receiver afforded little or no ground for believing that it could ever be profitably run; but that the borough of Ansonia had no knowledge of the financial condition of said road, beyond that afforded by the statement of said receiver to the warden of said borough, that the road was poor, and could not afford to pay for necessary repairs. (4) That the counsel for the appellants claimed and offered expert evidence to prove that the market value of said railroad was not increased by the laying of the pavement in question. The defendant offered no evidence upon this point. Your committee find that the value of the franchise of the road was materially increased by the laying of said pavement, inasmuch as it relieved the owner of said franchise of the obligation attendant upon the same of keeping the roadway between the rails of the track, and a space of two feet in width on each side of said track, in good and sufficient repair. In making their reassessment your committee assumed that the horse-railroad company stood upon a different footing from ordinary laud-owners, who are assessed according to the special benefits accruing to their land. The...