Griswold v. Town of Guilford

• Decision Date: 18 July 1902
• Court: Connecticut Supreme Court
• Parties: GRISWOLD et al. v. TOWN OF GUILFORD.

52 A. 742

75 Conn. 192

GRISWOLD et al.

v. TOWN OF GUILFORD.

Supreme Court of Errors of Connecticut.

July 18, 1902.

Appeal from superior court, New Haven county; Alberto T. Roraback, Judge.

Action by Samuel J. Griswold and others against the town of Guilford. From a judgment for plaintiffs, defendant appeals. Affirmed.

Henry G. Newton and Harrison Hewitt, for appellant.

J. Birney Turtle, for appellees.

PRENTICE, J. Under this appeal an attempt is made to raise two substantial questions of law. The first relates to the constitutionality of the act which gives to adjoining property owners the right to damages occasioned by changes of highway grades; being the act which was first passed in 1882, which appears as section 2703 of the General Statutes, and which was later amended by the provisions of chapter 211 of the Public Acts of 1805. The legislation contained in chapter GO of the Public Acts of 1901 does not concern this action, as it was subsequent to the public work in question. This question was not made in the court below. It is not presented by the reasons of appeal. Manifestly, it was an afterthought. The attempt to justify its consideration by us upon the ground that there was a request to charge the jury to the effect that, "unless the plaintiffs property outside the lines of the highway has been damaged, your verdict should be for the defendant," is in distinct violation of the spirit of our appellate system, and a palpable evasion of the provisions of section 13 of chapter 194 of the Public Acts of 1897, which require a distinct statement in the appeal of the errors complained of.

The second question was distinctly raised below, and is made a distinct reason of appeal. The claim is that a town, city, or borough within the limits of which a highway is improved under the provisions of what is commonly known as the "Good Roads Act" is not liable to an adjoining property owner for any damages which may be sustained by him in the progress of the work by reason of any change of grade thereof or excavations therein. In the discussion of this question there are two statutes to be considered. One is the good roads act, so called, appearing as it was at the time of the work in question in chapter 175 of the Public Acts of 1899. The other is chapter 211 of the Public Acts of 1895, already referred to; being the act which gives to adjoining property owners the right to recover damages for changes of grade, etc., in a highway. Our good road legislation began in 1805. Neither the act then passed, nor any amendment thereto, has ever undertaken to repeal any part of what for brevity's sake we may call the "Change of Grade Acts," or to limit their application. As there is no repugnancy between their provisions, there is no repeal by implication. Clearly both statutes may properly stand together, were intended to stand together, and do, therefore, stand together.

Chapter 211 of the Public Acts of 1895, amending section 2703 of the General Statutes, prescribes the right of the property owner to recover, etc., whenever there has been a change in the grade of a highway or excavations made therein in the process of its repair "by the town, city or borough in which such highway may be situated." Upon the town, city or borough is cast the burden of payment in view of this statute, certain conclusions are clear: The defendant town is not liable to the plaintiff unless by force of its provisions. Healey v. City of New Haven, 47 Conn. 313; McGar v. Borough of Bristol, 71 Conn. 652, 42 Atl. 1000. The town is not liable unless the public work from which the claimed damage resulted was, in the view of the law, its work. It is not liable unless this work comes within the statutory description, and amounted to a change of grade in the highway, or excavations, therein made in the process of repair thereof. No one is liable to the plaintiff for the damage caused, if the defendant is not. The improvement for the results of which the action is brought clearly involved a change of grade of the highway, within the meaning of the statute. The plaintiffs' and defendant's contention alike establish this fact. McGar v. Borough of Bristol, 71 Conn. 652, 42 Atl. 1000.

The only remaining question, then, is as to whether the improvement is to be regarded as one made by the defendant. We think it must be so regarded. The duty of caring for all the highways within the town is by statute cast upon it. Apart from the good roads act, there could be no doubt that the town was the only responsible authority, not only in the matter of repairs, but in all matters relating to improvements, changes of layout, grades, etc. The act in question was clearly not intended to work a radical change in the long-established...