New York & N. E. R. Co. v. City of Waterbury

• Decision Date: 26 January 1887
• Citation: 10 A. 162,55 Conn. 19
• Court: Connecticut Supreme Court
• Parties: NEW YORK & N. E. R. CO. v. CITY OF WATERBURY.

10 A. 162

55 Conn. 19

NEW YORK & N. E. R. CO.

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

January 26, 1887.

Suit for an injunction to restrain the defendant city from constructing a highway across the railroad track of the plaintiff.

Case reserved from superior court, New Haven county.

C. G. Root, for plaintiff. S. W. Kellogg and G. E. Terry, for defendant.

PARDEE, J. This is a petition for an injunction to restrain the defendant from constructing a highway intersecting the plaintiff's railway track at grade; reserved, upon the facts found, for our advice. In June, 1881, the court of common council of the city of Waterbury voted to lay out a highway to be called "Burnham Street," to cross the plaintiff's railway at grade.

The charter of the city provides as follows: "Every vote, resolution, order, etc., which passes either body shall be transmitted to the other, and if passed there shall also be sent to the mayor, who shall either approve it, in which case it shall become operative and effectual, or disapprove it, in which case he shall return it to the body in which it originated, at or before its next regular meeting, with a statement of his objections, and after such statement has been read in that body," etc. The mayor did not in writing approve the resolution laying out the highway. The court below has found that "it has never been the practice for the mayor to express his approval affirmatively in writing of any action, vote, or resolution of the common council, except in reference to the general ordinances. But all acts, votes, resolutions, and proceedings of the court of common council have been proceeded with upon the assumption or theory that all such votes, resolutions, acts, and proceedings were approved by the mayor unless disapproved in writing by him. And in all instances where he did disapprove he has done so in writing."

The mayor testified as follows: "I was mayor in 1881 when the lay-out of Burnham street was adopted by the court of common council. Had I supposed it was necessary to sign my approval of such vote to make it valid, I should have done so, as I was favorable to and approved of such lay-out, and in fact I did not disapprove of the same. Said vote was not sent to me for approval, nor did I express my approval of the same to any one or in any way, to my knowledge or recollection."

In 1883 the legislature passed an act which provides "that hereafter no new highway or portion of a highway, shall be constructed across any railroad at grade." In January, 1886, the defendant undertook to construct the highway across the plaintiff's railway at grade. The plaintiff interrupted the work by a temporary...