Naugatuck R. Co. v. City of Waterbury

• Decision Date: 14 July 1905
• Citation: 78 Conn. 193,61 A. 474
• Parties: NAUGATUCK R. CO. v. CITY OF WATERBURY (two cases).
• Court: Connecticut Supreme Court

61 A. 474

78 Conn. 193

NAUGATUCK R. CO.

v. CITY OF WATERBURY (two cases).

Supreme Court of Errors of Connecticut.

July 14, 1905.

Appeal from Superior Court, New Haven County; Silas A. Robinson and Edwin B. Gager, Judges.

Proceedings by the Naugatuck Railroad Company against the city of Waterbury. Judgment for plaintiff. Defendant appeals. Affirmed.

Applications for relief from certain assessments of benefits made by the city of Waterbury against the applicant The applicant filed in each case four reasons of appeal, to which the city demurred; and the court sustained the demurrer as to the second and fourth reasons of appeal and overruled it as to the first and third. Upon issues joined upon the first and third reasons of appeal the case was tried to a committee, who found the facts and reported them to the court, which accepted the report, and upon the facts found rendered judgment for the applicant, and the city appealed.

Lucien F. Burpee, for appellant Lynde Harrison, for appellee.

TORRANCE, C. J. (after stating the facts). These two cases may very properly be considered together. They are both in the nature of appeals to the superior court from assessments of benefits made by the city of Waterbury against the railroad company on account of the paving of certain city streets, and the questions involved in each case are substantially the same. The assessment complained of in the first case (No. 6) was made in July, 1890, on account of the paving of Bank street, and amounted to the sum of $413.33; while that complained of in the second case (No. 12) was made in August, 1892, on account of the paving of Meadow street and amounted to the sum of $1,566.95. No claim is made that the assessments were excessive or unfair. The only claim made is that the lands assessed for benefits in these cases were not, upon the facts apparent or found upon the record, liable to such assessment. Under its charter, at the time the assessments complained of were made, the city had authority to pave Bank and Meadow streets, and to assess upon the persons whose property was "especially benefited thereby a proportionate and reasonable part of the expense thereof." 7 Sp. Laws, p. 217. The lands described in both applications, together with all the other railroad property of the applicant, are now in the occupation of its tenant or lessee, the New York, New Haven & Hartford Railroad Company, under a lease for 99 years, and said lessee now operates the railroad of the applicant under said lease. In the superior court, in December, 1903, the applicant withdrew the reasons of appeal theretofore filed in that court by it in both cases, and substituted therefor in each case four other reasons of appeal. The city demurred to each of these reasons of appeal in both cases, and the court sustained the demurrer as to the second and fourth reasons, and overruled it as to the first and third. The substance of the first and third reasons of appeal may be stated as follows: That parcel of land of the applicant assessed for benefits by the city for the paving of Bank street abuts upon that street, and all of it is, and since 1867 has been, used solely and exclusively for railroad purposes, to wit, as and for a passenger station for the railroad of the applicant. The other piece of land of the applicant assessed by the city for benefits on account of the paving of Meadow street abuts upon said street, is contiguous to the first piece, and is now, and since about 1850 has ever been, used solely and exclusively for railroad purposes, to wit, as a freight station and freight grounds, covered by freight tracks and buildings for storing, receiving, and dispatching freight. Said two parcels of land are in continuous use for the purposes aforesaid, and are necessary and adapted for such purposes, and form a necessary part of the railroad property of the applicant and of its lessee. It is not the intention or...