New York, N. H. & H. R. Co. v. Stevens

• Decision Date: 11 June 1908
• Citation: 81 Conn. 16,69 A. 1052
• Court: Connecticut Supreme Court
• Parties: NEW YORK, N. H. & H. R. CO. v. STEVENS.

69 A. 1052

81 Conn. 16

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

v. STEVENS.

Supreme Court of Errors of Connecticut.

June 11, 1908.

Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge.

Application by the New York, New Haven & Hartford Railroad Company to take by process of eminent domain lands owned by Edward E. Stevens. Judgment for the railroad company, and defendant appeals. Remanded with directions to dismiss the application.

Verrenice Munger, for appellant. Benjamin I. Spock, for appellee.

BALDWIN, C. J. The Woodbury & Waterbury Street Railway Company was incorporated in 1903, with power "to locate, construct, and finally complete a street railway upon" a route particularly described in the charter, and, further, "to construct, maintain, and operate a line of railway upon any private property which it has or may acquire near to the route mentioned herein." The route described was in part from a point "about one thousand feet southerly from the dam at Quassapaug pond," in the highway leading from Woodbury through Middlebury to Southbury, "northerly along said highway to the southerly end of Quassapaug pond in said Middlebury; thence northeasterly on private property or in highway outside of the present traveled path to the junction of the roads near the Henry S. Wheeler place." 14 Sp. Laws, p. 316. In April, 1905, the directors of the company voted to apply to the selectmen of Middlebury for the acceptance of certain plans which were in preparation by the company's engineers, showing the proposed location of the railway in that town. The plans were afterward completed, and the application made in October, 1905. They showed by a proper map a proposed location crossing the highway above described from west to east by an overhead bridge from certain private property, at a point about 300 feet southerly from the southerly end of Quassapaug pond, and covering .09 of an acre of a house lot belonging to the defendant. This lot was bounded on three sides by the highway, and on the south by land of one Kelley, which was included in the proposed location. The selectmen in November, 1905, approved the plans and location thus presented to them, subject to certain modifications not material in this case. At the date of the application it was the general law that no company chartered for the purpose of building street railways could proceed to construct a railway in any town until it had presented to the selectmen a plan showing the proposed location of its tracks in the highways as to grade and the center line of said highways, who should "thereupon, after public notice, proceed to a hearing of all persons interested therein," nor until the selectmen had adopted such plan, or adopted it with modifications, or it had been "approved on appeal by the railroad commissioners or the superior court, as provided in sections 3832, 3833, and 3834 of the General Statutes." Pub. Acts 1905, p. 448, c. 244. This mode of procedure undoubtedly contemplates a plan of location of the railroad which has been previously approved by the directors. The vote of the directors of the Woodbury & Waterbury Street Railway Company was only an approval of plans to be thereafter completed; but it does not appear that, in respect to that part of the route brought in question in this case, any change was subsequently made, and does appear that in December, 1906, a contract was executed by their authority for the construction of the railway "on private right of way and highway through the town of Middlebury * * * as indicated on map," which map appears to be that accompanying the plans submitted to the selectmen. Under these circumstances, it sufficiently appears that the directors had approved the location indicated in the map mentioned.

The franchises and property of the Woodbury & Waterbury Street Railway Company became vested in the plaintiff on May 31, 1907. Among these franchises was that of exercising the power of eminent domain. Should it require any land upon which to construct its railway and be unable to agree with the owner as to his damages, it could apply to a judge of the superior court for the appointment of appraisers. The Woodbury & Waterbury Street Railway Company endeavored and was unable to agree with the defendant as to his damages. On May 31, 1907, the plaintiff also acquired by merger the franchises and property of the Consolidated Railway Company. One of those franchises was "the right to take, with the approval of the railroad commissioners, in the manner provided in ...