Application by the New York, New Haven & Hartford Railroad Company for the appointment of appraisers to estimate damages for the taking by such company of land belonging to George M. Long and others for railroad purposes. From an order appointing appraisers, Long and others appeal. Reversed.
This was an application to a judge of the superior court for the appointment of appraisers to appraise and value certain lands and easements belonging to the defendants, which the plaintiff has elected and intends to take for railroad purposes. The application is this: "To the Honorable Milton A. Shumway, a Judge of the Superior Court of the State of Connecticut: The application of the New York, New Haven and Hartford Railroad Company, a railroad corporation under the laws of this state, respectfully represents: (1) Said railroad company, on February 8, 1896, as set forth in the following resolution by its board of directors, took for railroad purposes the lands therein described, viz.: 'Resolved, that this company, subject to the approval of the railroad commissioners, hereby takes for additional tracks, turnouts, and freight and passenger stations and depots at New London, Connecticut the following piece or parcel of land situate, lying, and being in said town of New London, and bounded and described as follows, to wit: The tract belongs to George M. Long, Edward T. Pettigrew, and Thomas Hamilton, all of the town of Groton, Conn., and is bounded on the north and west by lands belonging to or leased by this company, on the east by New London Harbor, and on the south by lands now or late of George H. Powers; together with all easements, franchises, and rights connected with or appurtenant to said described tract and parcel of land.' (2) The said George M. Long, Edward T. Pettigrew and Thomas Hamilton, named in said resolution, are the owners of said tract of land as aforesaid, and of all the easements, franchises, and rights connected
therewith or appurtenant thereto, except a right or easement belonging to Ambrose Lester, of New London, in said state, to maintain and use water pipes as now laid across said land for the purpose of supplying vessels with water, and with the right of access and of mooring a water boat for the convenient exercise of said right. Thomas F. Morgan, of Groton, is the owner of a mortgage interest in the said lands. (3) On March 27, 1896, the railroad commissioners of this state, after due notice to all parties in interest, to wit, to the aforesaid persons, and after due hearing, had made their order and finding approving the taking by said railroad company of said land with the easements, franchises, and rights connected therewith or appurtenant thereto, a copy of which finding and order is hereto annexed as Exhibit A. (4) Said railroad company, on February 8, 1896, had, and ever since has bad, the right to take said real estate, as above described, for said purposes, and, although it has endeavored to agree, has been unable to obtain said real estate by agreement with the parties interested therein. Wherefore said railroad company applies to your honor for the appointment of appraisers, as provided by statute, to estimate all damages that may arise to any person from the taking and occupation of the aforesaid real estate for railroad purposes, and for such other and further relief as it may be entitled to receive. Dated at New London, this 7th day of January, 1897."
The record also includes a certified copy of the vote of the plaintiff's directors, recited in the first paragraph of the application. And also a certified copy of the doings of the board of railroad commissioners, referred to in the third paragraph. Exhibit A is as follows: "Exhibit A: State of Connecticut, Office of the Railroad Commissioners. Hartford, March — 1896. Upon the foregoing application of the New York, New Haven and Hartford Railroad Company, after due notice to all parties in interest, and after due hearing of said parties at the time and place stated in said notice, we find that the property described in said application consists of a tract of land situated on New London Harbor, in said New London, bounded as appears in said application, with riparian rights or franchises in said harbor connected with or appurtenant to said land, and with a right or easement belonging to Ambrose Lester, of said New London, to maintain and use water pipes as now laid across said land for the purpose of supplying vessels with water, and with the right of access and of mooring a water boat for the convenient exercise of said right. We further find that said land, with said easements, franchises, and rights connected therewith or appurtenant thereto, as described in said application and vote of condemnation, are necessary to said railroad company for the purposes set forth in said application and vote, and we approve the taking by said railroad company for such purposes of such land, with such easements, franchises, and rignts. Geo M. Woodruff, Wm. O. Seymour, Alex. C. Robertson, Railroad Commissioners."
The judge issued an order of notice. The parties defendant appeared before him on the day named, and filed a demurrer to the application, which was overruled. The defendants then filed an answer setting up four defenses. The first defense admitted the second paragraph of the application, and denied the other paragraphs. The second defense alleged that the said vote of the plaintiff's directors was passed "not within the territorial limits of the state of Connecticut." The third defense averred that there was no necessity for the plaintiff to take the said property, or any part thereof. The fourth defense is as follows: "Fourth defense: To so much of said application as asks for the appointment of appraisers to fix the value of the easements, franchises, and rights referred to in the said vote set forth in said application, the defendants say: Paragraph 1. That there is no necessity for the applicant to take the whole or any part of said easements, franchises, and rights for railroad purposes, or for any purpose for which the applicant could lawfully take the defendants' property. Par. 2. The defendants allege that either the whole or the greater part of the easements, franchises, and rights referred to in said alleged vote set forth in said application are outside of the limits of any survey made by the railroad company, and outside the territorial limits of any location intended to be occupied by any structure whatever by the said applicant. Par. 3. Certain easements, franchises, and rights referred to in said paragraph 1 are necessary to the applicant only for the purpose of establishing and continuing a line of boats or ships, and for the purpose of prosecuting the business of transporting goods, wares, merchandise, and passengers by water, and not as a railroad corporation. Par. 4. Some part of said easements, franchises, and rights are sought to be obtained by the applicant by this process for the purpose of enabling a water carrier or transportation company to have and use the same for the purpose of carriage and transportation for hire of goods, wares, merchandise, and passengers upon the high seas. Par. 5. There is no description of the easements, franchises, and rights claimed to have been taken, and this objection was made before the railroad commissioners. Par. 6. Before the railroad commissioners the defendants objected and protested against any action being taken therein, because no taking of the property in question was alleged in the application to said board, and because there was no sufficient and accurate description of the property to be taken alleged or contained in the application to said board, and because there was no sufficient and definite purpose alleged for the claimed taking, and because the nature of some of the easements, franchises, and rights was such as not to be subject of a taking as claimed by the applicant. Par. 7. The map showing the property claimed to have been
taken, and produced before and acted upon by the railroad commissioners, and lodged with them and made part of their finding, differs materially from the property claimed to be taken as described in the vote constituting the alleged taking. Par. 8. The said property described in said vote constituting the alleged taking was never, and is not, within the layout or location of the applicant's road or right of way, and was never, and is not, within its line of road, location, or right of way as altered, located, approved, or established. Par. 9. There was no notice or warning given of the alleged meeting of the said board of directors touching or relating to the subject-matter of the taking of the property in question, or relating to any proposed action, vote, or resolution, in respect to such taking. Par. 10. The whole number of directors were not present at said alleged meeting, nor did the full board of directors participate in said meeting or vote."
To these defenses the plaintiff demurred, except paragraphs 4 and 7 of the fourth defense. These paragraphs were denied. The judge heard the parties, and found the issues of law and fact for the plaintiff, and appointed appraisers. The finding of facts is this: "Finding. (1) Upon the trial of the issues of fact as on file, the said applicant, the New York, New Haven & Hartford Railroad Company, offered the testimony of S. A. Gardiner to prove the allegations of paragraph 4 of its complaint, that the said applicant had endeavored to agree, but had been unable to obtain the property in question by agreement with the parties interested therein. The respondents then, for the purpose of proving the allegations of the fourth paragraph of the fourth defense, asked said Gardiner the following...
