Fitch v. Boston & P. R. Co.

• Decision Date: 12 September 1890
• Citation: 59 Conn. 414,20 A. 345
• Parties: FITCH v. BOSTON & P. R. CO.
• Court: Connecticut Supreme Court

20 A. 345

59 Conn. 414

FITCH

v. BOSTON & P. R. CO.

Supreme Court of Errors of Connecticut.

Sept. 12, 1890.

Appeal from superior court, New London county; TORRENCE, Judge.

J. Halsey, for appellant. S. Lucas, for appellee.

ANDREWS, C.J. The record presents only a single question: Was that part of the charge given by the trial judge to the jury recited in the finding erroneous? The finding shows that it was conceded on the trial that the defendant railroad company was in the possession of the land, which it had taken under proceedings condemning it for railroad purposes, and the verdict has settled that the 40-foot strip, to which the condemned land adjoined on the north, was a public highway, part of Eighth street, so called, in New London. The plaintiff insists that the charge was erroneous because, he says, it, in effect, told the jury that the railroad company, having taken the land adjoining the highway for railroad purposes by condemnation proceedings, acquired thereby the same rights within the highway that a purchaser of that land by an absolute deed would have acquired, and that the possession by the railroad company of the land so taken was an ouster of the plaintiff therefrom. The language used by the judge is not quite as broad as the argument of counsel. His language was that the taking of the land on the north side of the highway by condemnation gave the railroad company "a right to one-half of the highway, subject to public use." If this language means just what the plaintiff's counsel say it means, we should be inclined to think that it was erroneous. The interest or estate which a railroad corporation acquires in land taken by it for railroad purposes by condemnation is, and from the nature of the uses must be, a right to the occupation of it, exclusive in point of user, and practically unlimited in point of duration. This right, while for many purposes it is substantially equivalent to the fee, is not the fee. Possession under this right would not be adverse to the reversioner. But we do not understand the language of the judge, when the whole of it is read, to mean quite what the plaintiff argues. Any charge of the court claimed to be erroneous must be considered, not in the abstract, but with reference to the actual facts in the case. A railroad company in the occupation of land taken by it for its purposes, if such land adjoins a highway, may do anything in the highway which any occupier of such land may lawfully do, or anything not depending on the ownership of the fee which the owner of such land might himself do. Any occupant of land abutting on a highway may do many things in the highway by reason of such occupancy. Such an occupant would undoubtedly have the right of free ingress and egress, and for that purpose might grade the surface of the highway if he did not thereby render the surface unfit for public travel. He might ordinarily construct a sidewalk, set hitching posts, place a stepping-stone to enable passengers to enter or alight from a carriage more readily, or set out shade trees. It appears that the defendant railroad corporation was using the land adjoining the highway to build thereon the approach to the bridge over the Thames river. This use is closely analogous to the occupation of lots in a city, where it is allowable in the building or repairing of houses to excavate within the line of the highway to lay down the foundations; or for the purposes of water-pipes, or drains, or sewers; or to place building material in the street. And the only limitation on these acts is that they must not be unnecessarily or unreasonably interposed or prolonged. O'Linda v. Lothrop, 21 Pick. 292; Shepherd v. Railroad Co., 130 U. S.433, 9 Sup. Ct. Rep. 598; Hundhausen v. Bond, 36 Wis. 29; Clark...