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

• Decision Date: 28 November 1899
• Citation: 44 A. 813,72 Conn. 420
• Court: Connecticut Supreme Court
• Parties: NEWTON v. NEW YORK, N.H. & H. R. CO.

44 A. 813

72 Conn. 420

NEWTON

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

Supreme Court of Errors of Connecticut.

Nov. 28, 1899.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Action by Louisa A. Newton, executrix of the estate of Thomas E. Newton, deceased, against the New York, New Haven & Hartford Railroad Company to recover damages for injury to, and depreciation in the value of, land of the plaintiff's testator, caused by the elimination of a grade crossing, brought to the superior court in New Haven county, where a demurrer to the complaint was overruled, and the cause was afterwards tried to the jury. Verdict and judgment for the plaintiff for $2,200, and appeal by the defendant for alleged errors in the rulings and charge of the court. Error.

The plaintiff is the executrix of Thomas E. Newton, late of the town of Orange. In her complaint she avers: That as such executrix she is the owner of a certain piece of land in the said town of Orange (being in the borough of West Haven), bounded east by Union street 207 feet, more or less. That said Union street was a highway running substantially north and south, about a mile in length, and was one of the principal thoroughfares in the said borough. That the defendant is a steam-railroad corporation, operating a line of steam railway through the state of Connecticut, and through the said town, across said Union street, at a place about 50 feet south of the plaintiff's said land. That: "(5) Some time during the year 1894 the defendant closed up said street near the said premises of said Thomas E. Newton, where its railroad crossed said Union street, and diverted the course of said Union street adjoining the premises of the said Thomas E. Newton to the west, alongside and substantially parallel with the defendant's tracks for a distance of about five hundred (500) feet, and then excavated under the railroad tracks of the defendant, and thereby changed the grade of said Union street, and ran said street under said tracks coincident with a certain street in said town of Orange known as 'Washington Avenue'; and after passing under said railroad tracks said street ran alongside and substantially parallel to the defendant's tracks on the south side thereof, for about five hundred (500) feet to the east, and to the original location of said Union street, on the south side of said track. (6) Prior to the time when said Union street was closed as aforesaid, the premises of the said Thomas E. Newton had been, and at that time were, and are, improved by two dwelling houses, barns, and other valuable buildings, which had a large rental value and there were several building lots upon said Union street frontage which were of great value. (7) By reason of the said acts of the defendant, the access to and egress from the said property was seriously interfered with. Said street is no longer a public thoroughfare, or of such convenience to the said property as it was theretofore. The said property was rendered permanently inaccessible, and of less value for rental purposes, and was greatly depreciated and damaged, because of the said acts of the defendant. (8) The said property of the said Thomas E. Newton was rendered permanently of much less value than before said acts of the defendant, and was damaged thereby to the extent of three thousand dollars." There were various motions, and rulings thereon, a demurrer, which was overruled, and an answer, as follows: "(1) As to paragraphs 1, 2, and 6, the defendant has no knowledge, or information sufficient to form a belief. (2) The allegation of paragraph 3 that Union street was one of the principal thoroughfares in said borough of West Haven, and in said town of Orange, is denied. As to whether said Union street was a highway, the defendant has no sufficient knowledge or information to form a belief. (3) Paragraph 4 is admitted, as to the existence of the defendant corporation, and operation of its lines of tracks, and defendant avers that said line of railway is its four-tracked main trunk line between New Haven and New York; but, as to the existence of any highway known as 'Union Street' at the place where the tracks of the defendant are located, the defendant has no knowledge, or information sufficient to form a belief, except that it is denied that, at the time when said railroad was laid out and constructed, any highway or other way whatever existed at said place, and it is denied that the defendant's line of railway crosses, or is run across, any such highway or way. (4) Paragraph 5 is denied, except that at or near the place mentioned in paragraph 4, where Union street, so called, is alleged to cross the tracks of the defendant at grade, viz. fifty feet or more southerly of the premises of said Newton, and southerly of the new street hereinafter referred to, running from Union street to Washington avenue, north of defendant's tracks, the defendant, acting under and in pursuance of an order of the board of railroad commissioners of the state of Connecticut dated the 1st day of February, 1804, made under and by virtue of chapter 220 of the Public Acts of 1889, closed said Union street, so called, to the public, at a point about —feet from the defendant's line of railway, and prevented access to and travel over its tracks within the lines of Union street, so called, thereby abolishing a dangerous grade crossing at said place. And, except, further, that on or about said day the defendant constructed and opened upon its own land, and about—feet from defendant's line of tracks, and wholly at its own expense, at grade, a street forty feet in width, running westerly from Union street, so called, in a straight line to Washington avenue, one of the main throughfares of said borough, upon which the station of the defendant is situated,—said new street being practically an extension easterly of York street, and being about — feet northerly of defendant's line of railway, said street being immediately southerly of and adjoining the premises of said Newton,—without changing the grade of any portion of Union street, or closing or obstructing the same at any point where the land of said Newton abuts upon said Union street, or upon said new street opened by the defendant. And except, further, that under and in pursuance of said order the defendant changed the grade of Washington avenue by lowering the same so that it passes under the tracks of the defendant at a distance of five hundred feet from said Union street, and that the defendant further opened and constructed a new street southerly of its tracks, and about —— feet therefrom, running from Washington avenue to said Union street, so as to connect Wood street with said Washington avenue; said street being practically an extension westerly of Wood street. (5) Paragraph 7 is denied, and it is further averred that access to or egress from said property was in no way, or to any degree, interfered with as alleged, and that said property was in no degree rendered inaccessible. (6) Paragraph 8 is denied." The plaintiff denied all the new matter in the answer. There was a trial to the jury, and the plaintiff had a verdict for substantial damages. The defendant appeals.

Henry Stoddard, George D. Watrous, and Harry G. Day, for appellant.

William H. Williams and Seymour C. Loomis, for appellee.

ANDREWS, C. J. (after stating the facts). The plaintiff alleges in her complaint that, as executrix of Thomas E. Newton, she is the owner of a tract of land in the town of Orange which abuts on its easterly side on a certain highway known as "Union Street." It appears in the case that the defendant is a railroad corporation operating a four-track railroad through the said town of Orange, and across the said Union street at grade. Acting in pursuance of an order of the railroad commissioners made for the purpose of removing the said grade crossing, and another like crossing in an adjacent street, the defendant closed a portion of the said street at a part of it where the land of the plaintiff did not abut, and changed the line of the street so as to enable travelers to pass around the closed portion. The situation can be readily seen by the subjoined diagram, copied from the brief of the plaintiff's counsel That part of Union street from A to B was closed by the said order of the railroad commissioners. The grade crossing at that place was obviated. The new highway from A to C and from D to B furnished means of travel. Washington avenue from C to D was lowered so that the highway passed under the track. The grade crossing there was...