McKeon v. N.Y., N. H. & H. R. Co.

• Decision Date: 05 December 1902
• Citation: 53 A. 656,75 Conn. 343
• Court: Connecticut Supreme Court
• Parties: McKEON v. NEW YORK, N. H. & H. R. CO.

53 A. 656

75 Conn. 343

McKEON

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

Case reserved from court of common pleas, Fairfield county; Howard J. Curtis, Judge. Action for obstructing a highway by Patrick McKeon 'against the New York, New Haven & Hartford Railroad Company. Defendant suffered default, and moved for a hearing as to the amount of damages, which hearing was had before Hon. Charles B. Andrews, as a committee. The report was accepted by the trial court, and case reserved for the supreme court as to the judgment to be rendered. Judgment for substantial damages advised.

Stiles Judson, Jr., for plaintiff.

Goodwin Stoddard and Arthur M. Marsh, for defendant.

BALDWIN, J. The defendant seeks to Justify the acts complained of on the ground that they were reasonably incidental to the work of elevating its railroad tracks in the city of Bridgeport so as to remove certain dangerous grade crossings, in obedience to the command of the state. That it was bound to obey this command, as found in the resolution of the general assembly approved January 22, 1895, and that the general plan adopted for that purpose, and embodied in the agreement between the city of Bridgeport and the defendant could not be successfully attacked for illegality by one whose land might be taken to carry it out, is no longer open to question. Mooney v. Clark, 69 Conn. 241, 37 Atl. 506, 1080; Railroad Co. v. Wheeler, 72 Conn. 481, 45 Atl. 14; Wheeler v. Railroad Co., 178 U. S. 321, 20 Sup. Ct. 949, 44 L. Ed. 1085. The board of railroad commissioners, in 1896, on a hearing had after public notice to all persons interested, approved the agreement (which is recited in Mooney v. Clark), and ordered its execution. It was also confirmed by the general assembly in 1901. 13 Sp. Laws, p. 730. One of its provisions was that during the progress of the work the defendant should "have the free use of such streets or portions of streets and the right to temporarily close such streets as may be necessary for the convenient prosecution of the work"; and the order so made by the railroad commissioners in 1896 specifically stated that "we deem it necessary and proper, for the due execution of the purposes of said resolution, and do order, that streets in said city be temporarily used, occupied, and closed as stipulated in said agreement" The resolution of 1895, to which reference was thus made, directed the railroad commissioners to make "all orders" which they might deem necessary as to "the temporary use, occupation or closing of any street in said city, and including the number of tracks to be constructed by said company." In 1899, without giving any further notice, the board of railroad commissioners made another order that the defendant should temporarily use, occupy, and close, between certain points, a street in Bridgeport known as "Railroad Avenue," which ran parallel and adjacent to its railroad, and "lay and use two temporary tracks" on that portion of the street during the progress of the work. The plaintiff owned a lot of land fronting on this part of Railroad avenue, on which had been erected a building containing a grocery store and several tenements, and a barn which he used as a livery stable. The defendant laid two railroad tracks on that half of the street of which the plaintiff owned the fee, and, to promote public safety, built a tight fence near the outer edge of the paved sidewalk in front of his store; the sidewalk, which was about six feet wide, becoming thus the only part of the avenue left open for public use. All direct communication between his lot and the main roadway of the street was thus cut off. On the tracks thus laid the defendant ran all its trains for more than a year, which was no longer than was necessary for the completion of the work. Mean while it was occupying its location for the construction of its new roadbed and laying its permanent tracks. It could have reserved room enough upon its location for laying these temporary tracks, and could have run all its trains over tracks sc laid while the work was in progress; but time and money were saved, and the danger both to its workmen and the public lessened, by puttins: them in the street, and the committee has found that it was necessary for the company to do all that it did. Whatever authority the general assembly could give for the temporary occupation of Railroad avenue for railroad purposes has been given. That authority in ample to protect the defendant against any charge of the commission of a public wrong. No statute, however, can avail to justify the taking of private property for public use without jus* compensation. Const, art. 1, § 11. The location of an ordinary steam railroad upon a highway is a taking of property it imposes an additional burden upon the soil, for which the owner of the fee is entitled to demand compensation. I inlay v. Railroad Co., 20 Conn. 240, 260, 68 Am. Dec. 302; Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 150, 36 Atl. 1107. The defendant put this burden on soil owned by the plaintiff. That it put it there merely as a temporary expedient in aid of a lawful work, and removed it as soon as the work was completed, is only important in determining the amount of compensation to which he is entitled. A lawful work cannot justify an unlawful expedient, and any expedient is unlawful as respects one whose property is thereby taken without his consent, unless he is first paid for what he is to lose. Nor is a wrongful taking of property, whether it be real or personal, any the less a taking, because it is not...