Hartford & C. W. R. Co. v. Montague

• Decision Date: 04 April 1900
• Citation: 72 Conn. 687,45 A. 961
• Court: Connecticut Supreme Court
• Parties: HARTFORD & C. W. R. CO. v. MONTAGUE.

45 A. 961

72 Conn. 687

HARTFORD & C. W. R. CO.

v. MONTAGUE.

Supreme Court of Errors of Connecticut.

April 4, 1900.

Appeal from superior court, Hartford county; Samuel O. Prentice, Judge.

Proceedings by the Hartford & Connecticut Western Railroad Company against Charles V. Montague. From a judgment overruling a demurrer to the complaint, defendant appeals. Judgment for defendant.

Edward D. Robbing, for appellant.

Charles E. Perkins, Arthur L. Shipman, and Charles E. Gross, for appellee.

BALDWIN, J. This is an application, brought in 1899, to take land of the defendant as part of the site of a branch railroad to run from Tariffville northeasterly to the line of Massachusetts, which the plaintiff was authorized to construct by an amendment to its charter made in 1887. The allegations are that in 1889 the stockholders of the company voted that it proceed forthwith to construct such a branch; that the board of directors thereupon made a location of it, embracing the land in question; and that this location was duly approved by the railroad commissioners, after due notice to the plaintiff's grantors, in August of that year. The defendant moved that the application be dismissed, and also filed a demurrer, because it showed upon its face that it was not brought until more than nine years after the order of approval.

The General Statutes (Revision 1888, c. 212, § 3439) declare that no land shall be taken for railroad purposes, except as otherwise provided in that chapter, "without the consent of its owner except within two years after the approval of the location of the route by the railroad commissioners." This was the law in force when this proceeding was instituted, and must control its disposition. It is urged that an examination of the history of this statute shows that it is not to be construed as applicable to railroad companies acting, like the plaintiff, under the authority of a special charter. Until 1867 there was no general law imposing upon such companies any limitation of time with reference to condemnation proceedings. In that year it was enacted that, "when the survey of any railroad company shall have been accepted by the railroad commissioners, said company shall procure and pay for the right of way of all lands through which they may pass, within twelve months, or make satisfactory arrangements with the parties owning said lands, or said acceptance by said commissioners shall be void." Pub. Acts 1867, p. 90, c. 84. This was held to present a defense available to any landowner after the lapse of the time specified, independently of any action by the state. New York, H. & N. R. Co. v. Boston, H. & E. R. Co., 36 Conn. 196, 202. In 1871 the first general incorporation law for railroad companies was passed. It gave (Pub. Acts 1871, p. 666, c. 106, § 6) power to such organizations to enter upon real estate for purposes of survey, and construct and maintain a railroad on such route as they might select; adding that they should be "vested with all the powers and privileges enjoyed by all other railroad companies in this state, subject to all the statutes which are now or may hereafter be enacted for the government of railroad companies, and all the immunities, rights, privileges, and powers given in this act shall be enjoyed by the railroad companies at present existing in this state; provided, the same do not conflict with the special provisions of any charter." By section 10 it was further provided that "any railroad company may lay out and locate its road, and take any lands for the various purposes thereof, in the manner prescribed by the general statute laws of this state; but no land shall be taken without the consent of the owner thereof, except within twelve months after the approval of the location of the route by the board of railroad commissioners." It is evident that this act was Intended in some respects to affect companies holding a special charter. There were at the date of its passage no railroad companies of any other description organized in this state, and there could have been none. Section 6 gave all the then existing companies the same privileges and Immunities which were offered to such future ones as might be incorporated under the act. It also invested the latter with all the privileges enjoyed by all the former, and subjected them to the same general statutory restrictions. One of these would have been that laid down by the act of 1867, the language of which has been quoted, had it not been for section 10. That, as to the companies embraced in its terms, while imposing a 12-months time limit for condemnation proceedings, unlike the act of 1867 prescribed no special sanction in case of delay. In the revision of 1875, the provisions of the act of 1871 were distributed under several articles, in the part concerning railroad companies (page 315). That article, entitled "Organization of Companies," contained the portion of section 6 relating to entries on land for purposes of survey, but made it applicable to "every railroad company," as regards "the route specified in its charter or articles of association"; placing next after it as a separate section, that clause of section 10 imposing a time limit for eminent domain proceedings,—the language of the original statute being kept substantially unaltered. No other provision for such a limitation was incorporated in that revision. Of the other sections in the act of 1871, several were placed in the article on "Steam Railroads," for the government of all railroad companies "except when otherwise specially provided in their charters."

Obviously the revisers understood it to be the purpose of the legislature by the act of 1871 to put all railroad companies substantially on the same footing in respect to the exercise of the power of eminent domain, except so far as special charters might in any particular case, otherwise prescribe. It is incredible that they would else have failed...