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

• Decision Date: 22 January 1918
• Court: Connecticut Supreme Court
• Parties: NEW YORK. N. H. & H. R. CO. v. ARMSTRONG et al.

102 A. 791

92 Conn. 349

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

v. ARMSTRONG et al.

Supreme Court of Errors of Connecticut.

Jan. 22, 1918.

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Action by the New York, New Haven & Hartford Railroad Company against Benjamin A. Armstrong and others. From a judgment for defendants, both parties appeal.. Error on plaintiff's appeal; no error on defendants' appeal.

In 1848 the General Assembly of Connecticut granted the plaintiff's predecessor in title a charter. Private Laws of Conn. vol. 4, p. 867. Parts of the charter are as follows:

Section 1: " * * * And said company is hereby authorized and empowered to locate, construct and finally complete a single, double-or treble railway or railroad, from some suitable point in the city of New Haven * * * to some suitable point in the city of New London. * * * And for the purpose of constructing said railroad or way, the said company is hereby authorized to lay out their road not exceeding six rods wide through the whole length, and for the purposes of cutting and embankments and for the purpose of necessary station houses, turnouts and for obtaining stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road."

Section 7: " * * * And it shall be lawful for said company to enter upon and use all such franchises, lands and real estate as may be necessary for them, in the manner and for the purposes set forth in the first section hereof: * * * Provided, that said railroad shall not be worked upon or opened across the lands of any person, until the damages assessed to such person shall have been paid or secured to be paid to his satisfaction: * * * Provided, that it shall not be necessary in order to the location of said road by the directors and the approval thereof by the commissioners, that the width thereof shall be definitely established by said directors or commissioners, previous to said location; but before the damages shall be assessed to any landholder by the appraisers, the width of said railroad shall be definitely fixed and established by said directors over and across the land so taken, upon one or both sides of the line so located."

Section 9: "That said company is hereby authorized to construct, erect, build, make and use a single, double or treble railway or road, of suitable width and dimensions, to be determined by the directors of said company, on the line or course by them designated. * * * "

Section 10: "That whenever it shall be necessary for the construction of their single, double or treble railroad or way to intersect or cross any stream of water or watercourse, or any road or highway it shall be lawful for said company to construct said railroad across or upon the same; but the said company shall restore the said stream or watercourse, or road or highway thus intersected, to its former state or in sufficient manner not to impair its usefulness."

Section 19: "Whenever said railroad shall cross any streams, coves or creeks, navigated by vessels at or above the place of such crossing, the said company shall erect draws of such width, or culverts of such height, as will suitably and conveniently accommodate such navigation. * * *"

The plaintiff's predecessor duly accepted said charter, and in 1851 lawfully laid out, located, and constructed its single track railroad in New Loudon to and across the tide and navigable water known as Shaw's Cove, where the same adjoins the Thames river; the center line of said location is the center line of the railroad bed and construction, as the same was then made and as it now exists. In 1892, the plaintiff located, laid out, and constructed another track. Both of these tracks were constructed upon piles and trestles closely built. Over the part of this six-rod strip occupied by these tracks and trestle the plaintiff and its predecessor have exercised the exclusive, continued use and control under a claim of right. When the plaintiff's predecessor constructed its single track in 1851, over all of the said six rods the waters of the Cove flowed. The plaintiff built a drawbridge across Shaw's Cove over a part of its track, and through this, over the waters of the Cove, navigation has been, and may be, had by the defendants and others.

In 1899 the defendants acquired title to a strip of land bounded northerly 30 feet on Bank street and southerly by the waters of Shaw's Cove. Since their purchase the defendants have filled in between their upland and the southwest side of the trestle-work of the defendants, and an oil plant has been constructed on the west side upon the land so filled. On or about June 2, 1910, the defendants began constructing piling for a platform on the southeasterly side of the plaintiff's tracks within the said six-rod strip. The defendants, at about the time of bringing . this action, had placed three large pipes designed to carry gasoline and oil through the trestle and piling from the proposed tanks upon the platform on the southeast to the tanks upon the filled-in land upon the northwest of the trestle. If the defendants are permitted to maintain the structure occupied by the Texas Oil Company on the west of the railroad or to occupy the said six-rod space southeast of the trestle, the plaintiff will be cut off from approach to its trestle and tracks from either side.

The plaintiff in the development of its business will need to construct more railroad tracks upon and through said six-rod strip, and for such purpose will need to occupy more of said six-rod strip for the construction of its trestle, roadbed, and tracks. The plaintiff can replace or repair its trestle, and tracks upon the trestle; but this method is attended with more delays to trains, and increase of expense and danger to railroad and the public, than if the work could be done on either side of the trestle.

Hadlai A. Hull, Charles B. Whittlesey, Frank L. McGuire, and C. Hadlai Hull, all of New London, for plaintiff.

Leonard M. Daggett and Frederick H. Wiggin, both of New Haven, for defendants.

WHEELER, J. (after stating the facts as above). We have incorporated in the foregoing statement facts which the motion to rectify and the motion to correct do not successfully criticize. We omit those facts which are especially pertinent to the title of those who claim, or are claimed, to be upland owners, since in our view the case may be decided without passing upon their title. The motion to correct should be sustained in part.

Certain material facts of the finding, as we read the evidence, do not appear to be supported by it. The finding that the railroad's location and lay-out was six rods in width across Shaw's Cove, and as such was duly approved, adopted, and accepted by the railroad, and that it has, ever since its location in 1851, occupied said space throughout its whole width of six rods, being three rods on each side of the center line of its location, and has exercised continued use and control of the same under a claim of right, and that the plaintiff and its predecessor have always claimed that their charter gave them the right to build six rods wide over and across Shaw's Cove, are not supported by the evidence.

We are unable to find testimony of a layout six rods wide, or of the acceptance by vote of a lay-out of any named width. Nor do we find testimony of any act of occupancy, except the location of the trestle with the two tracks. Nor do we find any testimony that the plaintiff has exercised on the southeasterly side of its railroad a right of approach for the purpose of repairing the trestle and tracks, nor that it has repaired the trestle by approach by water from either side of the trestle, or over the land filled in on the west by the defendants.

The finding that the railroad possesses such a right of approach we regard as one of law.

The finding that the defendants' predecessors, if entitled to compensation, had been compensated for interference with any wharf and reclamation rights belonging to them, or had abandoned claim to the same, was justified as a reasonable inference as to the part occupied by the trestle and its necessary support, but not as to the rest of the six-rod strip.

The finding that the defendants' pipes were designed to carry otner highly inflammable materials in addition to gasoline and oil is unsupported by the evidence.

Paragraphs 44, g, n, and o of the motion to correct should have been allowed. These relate to the existence of the footbridge maintained for upwards of 25 years by the city of New London across this Cove, attached to the trestle, and to the spur track laid for the benefit of defendants over this strip. Both the footbridge and spur track are shown on Exhibit A, which should have" been attached to the finding in the form it was in when admitted in evidence.

The defendants' motion to rectify the appeal should be allowed, and the finding corrected, by striking out paragraph 31, and by including the fact that the figures Aid lines mentioned in paragraphs 7 and 63 1/2 were superimposed upon a copy of Defendants' Exhibit A after the hearing, and cannot be seen by an inspection, and were not seen by the trial court upon the examination of the premises.

Paragraph 57 of the finding we regard as a conclusion of law, and not as a finding of fact.

These corrections being made, we think the plaintiff entitled to a judgment, and hence there is no error on defendants' appeal.

As we view the case, it will be unnecessary to consider or decide what, if any, rights of reclamation and wharfage the defendants may have in Shaw's Cove. We shall assume, without deciding, that the defendants are riparian owners on either side of the six-rod strip in controversy.

The title to the soil under the waters of Shaw's Cove below low-water mark was in the state as trustee for the public, subject to whatever privileges or franchises adjoining proprietors might have....