N.Y., N. H. & H. R. Co. v. Bridgeport Traction Co.

• Decision Date: 08 January 1895
• Citation: 65 Conn. 410,32 A. 953
• Parties: NEW YORK, N. H. & H. R. CO. v. BRIDGEPORT TRACTION CO.
• Court: Connecticut Supreme Court

32 A. 953

65 Conn. 410

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

v. BRIDGEPORT TRACTION CO.

Supreme Court of Errors of Connecticut.

Jan. 8, 1895.

Appeal from superior court, Fairfield county; Shumway, Judge.

Suit by the New York, New Haven & Hartford Railroad Company against the Bridgeport Traction Company to enjoin the construction of a grade crossing. Judgment for plaintiff. Defendant appeals. Reversed.

Thomas N. McCarter, Morris W. Seymour, and Howard H. Knapp, for appellant.

Goodwin Stoddard and Wm. D. Bishop, Jr., for appellee.

BALDWIN, J. The plaintiff's complaint is in the nature of a pure injunction bill. It avers that it sends about 200 hundred regular trains of cars daily, some of which carry the mails of the United States, and the rest passengers and freight, across Fairfield avenue, in the city of Bridgeport, at grade; that the defendant threatens to obstruct the plaintiff's right of way by forcibly laying tracks for an electric railway over said crossing and upon the plaintiff's tracks; and that, if such new tracks are so laid and used, it will seriously impair the plaintiff's power to fulfill its chartered purposes, disarrange its train service, put it to great additional expense in the operation of its road, and greatly endanger the lives of the passengers and employes on all trains crossing such avenue. The defendant's answer admits the character and extent of the plaintiff's business, as alleged, but sets up a grant by the last general assembly of express authority to construct the crossing in question, at grade. It appears by an agreed statement of facts (made subject to the opinion of the court as to their relevancy) that Fairfield avenue was a public highway long before the plaintiff's railroad was constructed, and that the proposed crossing by the defendant's railway "impairs the property of the plaintiff, interferes with the accustomed and necessary operation of its road, and endangers the lives of its passengers and employes. But the defendant does not intend to injure the property of the plaintiff, or interfere with the accustomed and necessary operation of its road, or endanger the lives of its passengers, and will not, except such as naturally follows from the location and operation of its trolley road across the tracks of the plaintiff at grade." These facts are relevant and material to the issue. They show that the proposed crossing, if constructed, will interfere with the necessary operation of the plaintiff's road, and endanger the lives of all whom it transports across Fairfield avenue in the 200 trains which daily pass there. It would be difficult to make out a stronger case for the interposition of a court of equity, if it has the power to interpose. Only by an injunction can the defendant be prevented from setting up across the tracks of a steam railroad, in constant use, an obstruction of a continuing character, which would daily put in peril hundreds or thousands of human lives.

It is argued that the plaintiff's claim is, in substance, simply one for an injunction against threatened trespasses or repeated obstructions of a right of way, and that it is not claimed that the defendant is not pecuniarily responsible for any damage it may. do, nor that the plaintiff will be exposed to irreparable injury. But the plaintiff holds its right of way charged with the performance of a public trust for its continuous use for public accommodation. Gates v. Railroad Co., 53 Conn. 333, 341, 343, 5 Atl. 695. Its railroad is a great avenue of communication between one part of the state and another and between this and other states. Any impediment to its safe and proper use is a matter of public concern, not to be measured by money, or dealt with on the footing of a claim for damages. If erected without authority from the state, it may be that the state's attorney might properly sue for an injunction; but the same remedy would be open to the plaintiff, for it suffers a special injury, and is charged by the state with a special duty of maintaining its road at this crossing in uninterrupted use under safe conditions. Borough of Stamford v. Stamford Horse R. Co., 56 Conn. 381, 395, 15 Atl. 749; Prink v. Lawrence, 20 Conn. 120.

As the plaintiff has stated a case sufficient to support its action, we are brought to the consideration of the merits of the defense founded on a legislative grant. In June, 1893, the East End Railway Company owned and operated a horse railroad in Bridgeport and Stratford, under a charter granted many years before, which railroad crossed the tracks of the plaintiff's railroad at grade, upon a highway known as "Seaview Avenue." By an amendment to this charter, approved June 28, 1893, it was authorized to extend its lines in each town by laying tracks through certain designated streets, "and also from Stratford avenue on and along Pembroke street, across the tracks of the New York, New Haven and Hartford Railroad Company at grade, until said tracks are elevated, to Old Mill Green; subject to such regulations and restrictions as to said railroad crossing as the board of railroad commissioners may at any time order upon the application of either of said companies; and from the lower bridge westerly, over and under the tracks of said railroad to the junction of Fairfield avenue and Water street; provided, however, that when said railway company shall abandon its present crossing with its tracks at grade with the New York. New Haven and Hartford Railroad Company at Seaview avenue, in the city of Bridgeport, it may cross the tracks of said steam railroad at grade at or near the junction of Fairfield avenue and Stratford avenue, at the southerly end of the railroad station of said steam railroad in the city of Bridgeport; subject, however, to such regulations and restrictions as the railroad commissioners may at any time order upon the application of either of said companies; and from the junction of Fairfield avenue and Water street southerly along Water street, westerly to Main street; * * * also from the northerly terminus of the line of said horse railway on East Main street across the tracks of the New York, New Haven and Hartford Railroad Company at grade, until said tracks are elevated, to the north side of East Washington avenue; subject, however, to such regulations and restrictions as the railroad commissioners may at any time order, upon the application of either of said companies." Sp. Acts 1893, pp. 878, 879. This amendment also empowered the company to equip and operate its road with electric power, and to consolidate and make common stock with any other street-railway company having lines in Bridgeport, or to transfer to it its property and franchises. A horse railroad had been in operation in Bridgeport for many years, owned by the Bridgeport Horse-Railroad Company. By an amendment to its charter, approved June 28th, this company was authorized to consolidate with any other street-railway company, to equip its lines with electric power, and to extend them through various streets, among which were Congress street, "across the railroad tracks of the New York, New Haven and Hartford Railroad Company at grade, until said grade crossing is abolished by the steam railroad company; * * * subject to such regulations and restrictions in the matter of crossing the tracks of said steam railroad at grade as the railroad commissioners may at any time make upon the application of either of said companies"; and also North avenue, Broad street, Lafayette street, South avenue, and "Fairfield avenue in the western section of said city,"—each of which five streets was crossed by the plaintiff's steam railroad at grade, and in respect to each of which the company was empowered to construct a grade crossing over such steam railroad, in the same words used regarding the Congress street crossing, and subject to the same restrictions. On the same day the Bridgeport Railway Company was chartered, with power to construct and operate an electric railway through certain streets in Bridgeport; to cross the tracks of any steam railroad at grade, under such regulations and restrictions as the railroad commissioners should establish for the safety of the public; to acquire all the rights and franchises of the East End Railway Company and of the Bridgeport Horse-Railroad Company, and to become consolidated with them by the name of the Bridgeport Traction Company. The concluding section of this charter ran thus: "Except as otherwise herein expressly provided, this charter shall be subject in all its parts to the general laws relating to street railways and street railway companies." Sp. Acts 1893, p. 877, § 19. The amendment to the charter of the Bridgeport Horse-Railroad Company also contained substantially the same provision. The consolidation and transfer of franchises thus authorized was duly made prior to August 16, 1893.

By a public act, which took effect on June 1, 1893 (Pub. Acts 1893, p. 307), it was enacted that no street-railway company already existing or thereafter incorporated should lay new tracks in any city until its plan of construction and operation had been approved by the mayor and court of common council. Soon after the consolidation, the defendant, as owner of the rights and franchises of each of the three companies so consolidated, presented its plan of construction and operation (which involved the abandonment of the Seaview avenue grade crossing, and the laying of a double track on Fairfield avenue, to cross the plaintiff's railroad at grade by means of electric power supplied to a trolley from overhead wires), to the mayor and court of common council of Bridgeport and it was duly approved. On June 14, 1893, a public act was passed (Pub. Acts 1893, p. 361, c. 208) amending chapter 108 of the Public Acts of 1889, so as to read as follows: "No electric, cable, or horse railroad shall hereafter be constructed across the tracks of a steam railroad at grade, except upon...