Sawicki v. Conn. Ry. & Lighting Co.

• Decision Date: 17 February 1943
• Citation: 129 Conn. 626,30 A.2d 556
• Court: Connecticut Supreme Court
• Parties: SAWICKI v. CONNECTICUT RY. & LIGHTING CO. et al.

129 Conn. 626

30 A.2d 556

SAWICKI

v.CONNECTICUT RY. & LIGHTING CO. et al.

Supreme Court of Errors of Connecticut.

Feb. 17, 1943.

Appeal from Superior Court, Haven County; Wynne, Judge.

Action which was brought to the superior court and which was tried to the court, by Julia Sawicki against the Connecticut Railway & Lighting Company and the Hallock Realty Company to recover for injuries allegedly caused by defendants' negligence. From a judgment for plaintiff against the Hallock Realty Company only, the Hallock Realty Company and the plaintiff appealed. The plaintiff having died while the appeal was pending, the superior court substituted Anthony Sawicki, administrator of the estate of Julia Sawicki, deceased, as party plaintiff.

Error and case remanded with direction to enter judgment for plaintiff against the Connecticut Railway & Lighting Company and for the Hallock Realty Company.

Harold E. Drew, of Derby, and Ralph H. Clark, of New Haven, for appellant (defendant Hallock Realty Co., Inc.).

Elmer W. Ryan, of New Haven (Leon E. McCarthy, of Ansonia, on the brief), for appellant-appellee (plaintiff).

Martin E. Gormley, of New Haven, for appellee (defendant Connecticut Ry. & Lighting Co.).

Before MALTBIE, C. J., and JENNINGS, ELLS, DICKENSON, and INGLIS, JJ.

ELLS, Judge.

The plaintiff, while standing on the top of a retaining wall used as a sidewalk and built by the defendant Railway Company at or near the westerly boundary of New Haven Avenue in Derby, fell through a fence guarding the outer edge of the wall and was injured. She sued the Railway Company and The Hallock Realty Company, owner of the premises adjoining the wall on the west, and recovered judgment against The Hallock Company alone. She has appealed, claiming that the Railway Company also is liable. The Hallock Company has appealed, and claims there is no liability on its part.

The trial court decided that the fence had been rotten and unsafe for at least two years. The defendants concede liability on the part of someone, and the only question is, who is liable? This will be answered by deciding whether one or both of the defendants owed the plaintiff a legal duty to keep the fence in reasonable repair. The court concluded that the fence inured to the sole benefit of the Hallock Company and was appurtenant to its premises, and that use and custom through the years had imposed upon it the supervision and control of the fence.

New Haven Avenue, as laid out in 1896, was of uniform width except that where it abutted the Hallock property and properties of adjacent owners it was six feet nine inches narrower for a distance of one hundred and fifty feet. This was due to the fact that two houses on the Hallock property and other buildings on properties south thereof jutted into the highway as laid out. In 1903, the Railway Company, planning to build and operate trolley tracks along the westerly side of the highway, bought this jog from Edwin Hallock, the predecessor-in-title of the defendant the Hallock Company, and adjacent owners. The deed named as the grantee George J. Roberts, who was an agent of the Railway Company. The land sloped to the west, making it necessary for the Railway Company to fill it in and build a retaining wall so that the trolley tracks would be level. The paved portion of the highway was to the east of the land acquired. While Roberts held the property, the Hallock houses were moved back onto Hallock's land to the west, the retaining wall was built, the fence in question was built upon it and the trolley tracks were laid. The court found that there was no direct evidence as to who built the fence, and none that it was constructed by Hallock.

The new construction cut off access from the Hallock houses to the highway, so Hallock built steps for use in climbing from the yard to the top of the wall. The steps had a balustrade with a handrail on each side. At the top of each balustrade resting on the wall was a post, which posts were adjacent to the posts of the fence on top of the wall. The post at the top of each balustrade had a bolt extending through it, which bolt also extended through the nearest fence post. The fence was supported by two rails fastened to the south post and running westerly to a Hallock house, which rails were spiked with nails to the northeast corner of the house.

In 1904, about a year after he acquired the jog, Roberts conveyed this land, together with other parcels he had acquired, to the Railway Company. The deeds from Hallock and other owners of the jog to Roberts, and from Roberts to the Railway Company, contained the following provision: ‘It being understood and agreed, and this deed is made upon this express condition, that the premises herein conveyed are to be used for highway purposes only and the location and operation of an electric street railway thereon, and said conveyed premises are to become and be a part of the highway in front of the grantor's adjoining premises.’ In 1906, the Railway Company leased its properties and ceased to be an operating company. In 1936, by order of a federal court the property was returned to the Railway Company. It is not necessary to describe intervening events. The Railway Company was granted permission ‘to discontinue the operation of street railway cars, without the loss of franchise so to operate,’ over certain routes, of which this was one. In 1937, trolley operations were discontinued, all rails, wires and poles were removed from the property in question and the Railway Company thereafter operated buses over the highway.

Other salient facts are these: There is no sidewalk on the westerly side of New Haven Avenue in front of the Hallock property, but people for years have used the top of the wall for sidewalk purposes. Since the rails were removed the general public has not used the land in question for highway purposes; no care has been taken of it; it is rough and unfit for travel. There was nothing to indicate to persons passing on the highway where the boundary of the highway ended and the jog began. The Hallock Company never kept the surface of the jog in repair. While the trolley line was in operation, the rails were raised above the surface of the ground and there was no horse-drawn or automobile traffic over this strip of land. There has been no formal action, either by the state of Connecticut or the city of Derby, whereby this narrow strip of land described in the deeds was made a part of the highway adjoining the same.

A principal claim of the Railway Company is that there has been a complete dedication of the jog, that it became a part of the highway, and that it became the duty of the municipality and not of the Railway Company to maintain the fence. There can be no dedication of land for a highway without acceptance by the general public or action by the proper authorities. Stratford v. Fidelity & Casualty Co., 106 Conn. 34, 36, 137 A. 13. It is sufficient to point out that the court has not found a dedication. The question ‘is one of fact in so far as it involves inquiries as to whether or not the requisite acts and things have been done so that legal requirements have been met.’ Phillips v. City of Stamford, 81 Conn. 408, 411, 71 A. 361, 363, 22 L.R.A.,N.S., 1114; Hall v. City of Meriden, 48 Conn. 416, 428. We point out also that the first step in the claimed dedication was by the deeds in question, which provide that the land is to be used for highway purposes and also by a private person for the ‘operation of an electric street railway thereon.’ There was no attempt to dedicate the land for highway purposes only.

The Railway Company built the retaining wall for its own purposes, filled in the acquired land, which closely adjoined the existing highway, and created, as the court expressly found, ‘a dangerous condition for tenants in the Hallock property and such people as passed in its vicinity unless protected by a fence along...