N.Y., N. H. & H. R. Co. v. Fair Haven & W. R. Co.

• Decision Date: 17 June 1898
• Citation: 40 A. 607,70 Conn. 610
• Court: Connecticut Supreme Court
• Parties: NEW YORK, N. H. & H. R. CO. v. FAIR HAVEN & W. R. CO.

40 A. 607

70 Conn. 610

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

v. FAIR HAVEN & W. R. CO.¹

Supreme Court of Errors of Connecticut.

June 17, 1898.

Case reserved from superior court, New Haven county; George W. Wheeler, Judge.

Suit by the New York, New Haven & Hartford Railroad Company against the Fair Haven & Westville Railroad Company to restrain the construction and operation of an electric street railway across the plaintiff's tracks at grade, brought to the superior court in New Haven county, and reserved by that court, upon an agreed statement of facts, for the consideration and advice of the supreme court. Judgment for plaintiff advised.

Henry Stoddard, for plaintiff.

George D. Watrous and James D. Dewell, Jr., for defendant.

HAMERSLEY, J. In the case of Imlay v. Railroad Co. it was held that "to subject the owner of the soil of a highway to a further appropriation of his land to railway uses is the imposition of a new servitude upon his estate, and is an act demanding the compensation which the law awards when land is taken for public purposes." 26 Conn. 249, 259. The doctrine established in this case has since been treated as settled law, and was affirmed in the very recent case of Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 Atl. 1107. In the latter case a distinction is drawn in respect to that class of street railroads that can "be so built and operated as to serve the public, without injury to the landowner." The precise question at issue was the right of the plaintiff (owner of the land covered by the highway) to an injunction restraining the defendant from building a railroad in the highway under authority of a charter which did not contemplate "the construction of a railway in such a manner as substantially to obstruct ordinary highway travel, or necessarily to cause special damage to any landowner," when in the complaint "it is not alleged that it is intended to construct it so that any of those effects would be produced." The precise point decided was that an injunction would not issue in such case, because the plaintiff was not entitled to compensation for the disturbance of the soil in the highway made under authority of the state for such purpose. It was assumed that the power of the state to control the land within the lines of its highways, so far as may be necessary to promote their use for public travel without derogating from the general privileges belonging to the public, may be exercised in giving to a railroad corporation the right to lay its tracks in the highway for the purpose of operating a street railroad of the harmless kind indicated; that this new use, although not identical in every particular with the common use for which the way was laid out, may, nevertheless, be so far identical as to justify the state in so regulating the surface of the highway; and that in such case the owner of the fee is not in fact injured in respect to his land within the highway, and is entitled to no compensation. But the property injured by the lay-out of a highway, or by its appropriation to a new use, is not simply the land within the lines of the way, but the whole land which is burdened by the way. Compensation is not made merely for depriving the owner of exclusive possession of a strip of his land, but also for the special damage done to his remaining property, by the use of that strip. The compensation for the property taken is measured by the net damage to the whole piece of land. Trinity College v. City of Hartford, 32 Conn. 452, 478. For a period long anterior to the adoption of our constitution, we have recognized these two descriptions of property and elements of compensation, reck v. Smith, 1 Conn. 103, 112. And, even when the fee of the highway is in the public, the interest of the adjacent lot owners which may be damaged has been held to be property for the injury of which compensation must be made. Crawford v. Village of Delaware, 7 Ohio St. 459. And so in the Canastota Knife Co. Case, in holding that the residuum of possessory right in the owner of the fee is not necessarily invaded by the state in authorizing the construction of a railroad in the highway, it was also held that the property of landowners appropriated through special damage caused by the construction or operation of the railroad must be paid for. On this subject the court says: "Two rights are to be guarded with equal care,—that of the individual landowner, and that of the public at large." "A street railway may be so constructed and operated as to be a proper means of facilitating public travel. It may also be so constructed, but not so operated. It is, in such case, a means that may be, and is, abused; but for any abuse the law can supply the remedy. Nor would the legislative grant, in such a case, avail to deprive the owner of the soil of his right to compensation." "If either the mode of construction or of operation be such as to make it a substantial impediment to public travel or a proximate cause of special damage, of a new description, to the owner of the soil, the law will give redress." "If special and peculiar damage is done or threatened to any particular landowner, whether the proprietor of the fee in the highway or of adjoining land his rights of action are clear and certain." And it is stated as a reason for refusing the injunction that the complaint did not allege that the contemplated railroad would necessarily cause special damage to any landowner. The case rests on two propositions which must be taken together,—one, that the state may authorize the construction and operation of railroad of a certain description within the highway without invading the possessory rights remaining in the owner of the fee; and the other, that when a private corporation, as grantee of such franchise, causes special and peculiar damage to any landowner, compensation must be made. This conclusion presents a practical method of dealing justly-guarding "with equal care the rights of the individual landowner, and of the public at large"—with the novel questions arising from combining within the same territorial limits facilities for railway travel and ordinary travel; and, as a practical result, was substantially approved by all the judges, although they differed somewhat widely as to the considerations which might most reasonably and logically lead to such a result.

In the present case the plaintiff alleges that the defendant has, without making compensation therefor, constructed a double-track electric railroad upon its land, and claims a perpetual injunction restraining the operation of the road, and an order requiring the defendant to remove its tracks. The defense is that the land occupied by the defendant's tracks is a public highway, and is so occupied by authority of the legislature. The complaint also sets out that the alleged highway is crossed by the plaintiff's railroad tracks; and the special damage alleged is largely confined to that arising from a dangerous grade crossing. If the only interest of both the plaintiff and defendant were a right, derived from the state, of passing over a highway, the one transversely and the other longitudinally, such elements of damage could hardly be the subject of compensation unless by force of special legislation. New York, N. H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 432, 32 Atl. 953. They can be considered only in connection with some deprivation of a property right. There is nothing in the record to distinguish the defendant's road from the harmless street railroad contemplated in the Canastota Knife Co. Case, unless it be its injurious effect on the property of landowners. The plaintiff (assuming its land to be covered by a public highway) is not entitled to injunction or compensation for the mere occupation of that land by the tracks of the defendant. There must be some peculiar and special damage done to the property of the plaintiff. It is doubtful, at least, whether such special damage is sufficiently alleged in the complaint, although it is found in the agreed statement of facts. If, therefore, the defense were clearly supported by the facts found, we might properly deny the injunction; leaving the plaintiff to its legal remedy for such special damage as it may have sustained. But this defense is not clearly supported. The finding of facts presents a most exceptional case.

The alleged highway which the defendant has occupied extends from the junction of Bridge and Water streets, in the city of New Haven, easterly to a bridge structure over navigable waters connecting New Haven and East Haven, and was originally a causeway built as part of a toll bridge extending from high-water mark near the junction of Bridge and Water streets, to East Haven. The easterly and larger portion of this causeway is conceded by the parties to be now a public highway. The controversy is in respect to the westerly portion, where the use of the defendant's road makes the very dangerous grade crossing described. The following sketch of the plaintiff's land upon which the controversy turns (marked on the exhibit as "Parcel B") will illustrate the situation:

(The defendant's tracks from a to b are laid on a conceded highway. From a to c they cross the plaintiff's land known as "Parcel B." From c westerly they are laid on a highway. The plaintiff's railroad tracks cross as indicated.)

It appears that prior to 1796 there was a public ferry between New Haven and East Haven, having its western terminus at or near the present junction of Bridge and Water streets, with a public highway leading thereto. It does not appear that this landing was, in fact, interfered with by the bridge, or that the ferry could not be used or was not used after the construction of the bridge. No inferences affecting the present question can be drawn from the mere existence of the ferry. In 1796 the "Company for Erecting and Supporting a Toll Bridge from New Haven to East Haven" ...