Shelton Co. v. Borough of Birmingham

• Decision Date: 29 February 1892
• Citation: 61 Conn. 518,24 A. 978
• Court: Connecticut Supreme Court
• Parties: SHELTON CO. v. BOROUGH OF BIRMINGHAM.

24 A. 978

61 Conn. 518

SHELTON CO.

v. BOROUGH OF BIRMINGHAM.

Supreme Court of Errors of Connecticut.

Feb. 29, 1892.

Appeal from court of common pleas, New Haven county; Studley, Judge.

Proceeding by the Shelton Company against the borough of Birmingham for a reassessment of damages resulting from a change in the grade of the street in front of plaintiff's premises. To the acceptance of a report of a committee awarding damages, defendant remonstrated, whereupon the questions of law were reserved for the advice of this court. Remonstrance sustained.

E. B. Gager, for plaintiff.

W. S. Downs, for defendant.

FENN, J. Upon the application of the Shelton Company for a reassessment of damages the judge of the court of common pleas for New Haven county appointed a committee, who made a report against which the respondent borough remonstrated, and thereupon the questions of law arising were reserved for the advice of this court. There were two grounds of remonstrance. It appears from the report that the petitioner is the owner of land with a frontage of about 127 feet on Main street in said borough, and that the whole front is occupied by two brick buildings, containing stores and an office, with basements under the entire buildings, and that the buildings are built upon the line of the street. There are in the buildings six basement windows, and four basement entrances, consisting of steps projecting into the sidewalk about four feet, and laid to the sidewalk from the basements. The front entrances to the basement are covered with a flat, board covering. There are also entrances to all of these basements from the rear on the company's land. The front entrances have been there since the construction of the buildings, about 20 years ago, and no objection has been made to them by the authorities of the borough, and no permission was ever granted to the company by the borough to locate them in the sidewalk, except as may be implied from their construction and use without objection. The borough, pursuant to the authority of its charter, caused a change of grade, by which the surface of the street and sidewalk was raised about 2 feet at the east end of the petitioner's premises, which rise gradually diminished until at the westerly end it is about 16 inches above the former grade. By this rise in grade the basement steps are rendered practically useless, and to render them available they must be carried further into the sidewalk, at increased expense and inconvenience, to allow of access to the basements; and the basements are thereby rendered much less accessible, and are permanently impaired in value. The basement windows are darkened, and the value of the buildings injured. By these causes the committee found that the buildings have been damaged by the change of grade to the amount of $250 The borough objected to so much of the evidence as tended to show damage to the buildings because the front entrances leading into the basements were rendered practically useless, as above stated, on the ground that the borough had full power and authority over its streets and sidewalks, and that the Shelton Company had no right to occupy or appropriate the sidewalk in the manner aforesaid for the purpose of an entrance to the basements, so as to interfere with the right of the borough in, over, and upon the streets and sidewalks. But the committee overruled the claim, and admitted the evidence, and the borough duly excepted; and this furnishes one of the grounds of remonstrance. And since it is impossible to determine from the report of the committee what portion of the aggregate sum of $250, allowed for various causes enumerated, of which this is one, (and from its being the first one named, and that in regard to which much is said, perhaps the principal item,) was allowed for this cause, it is manifest that if such evidence should not have been received, or such ground of damage entertained and supported, the report cannot be accepted.

By the provisions of the charter of the borough of Birmingham (section 38) it is provided that "said borough shall have sole and exclusive authority and control over all streets, sidewalks, public squares, public parks, and highways, and all parts thereof, within its limits." This, however, is no exceptional or unusual power. The duty to keep in repair, and the liability in case of failure so to do, would never have been imposed by the General Statutes upon municipalities without the correlative power to control. If the petitioner has any right to compensation for the alteration in the grade of the walk, so far as the element now under consideration is concerned, it arises by virtue of Gen. St. § 2703, as the owner of land adjoining a public highway who sustains special damage to his property by reason of a change of grade in the high way. But the petitioner can sustain no damage to his property unless the exercise of some beneficial right, incident or appurtenant to such property, has been impeded or impaired. It must therefore appear that there is, as appurtenant to such property, the right of approach, not outside of, but within, the limits of the public street, in a different manner from that of the public in general,—the right of access below the surface,—to use the sidewalk in a manner for which the general public have neither the occasion nor the power to use it; and in such a manner as is calculated to add to the risk of the public, and to the liability of the borough. Littlefield v. City of Norwich, 40 Conn. 406. The existence of such a right would seem to be inconsistent with, and to render nugatory, the provisions of the charter which we have quoted; for how can the borough have 'sole and exclusive authority and control" over a street in which a private person has a paramount and superior right, amounting to property, for the interference with which he is entitled to compensation, where such person is entitled to exercise a different and inconsistent control. If the borough cannot make the street more convenient for the public use without paying the petitioner damages because it thereby becomes less convenient for its private use, who has, in fact, control? And if the petitioner has such control and superior rights, how did it acquire them? Is it because it has used them for 20 years without either abjection or permission? Prescription, as against private individuals, is not wont to be made out in that manner. And is it sufficient as against the public? When it becomes conceivable that anyone can make such a claim, which has not yet been made by anybody, it will be time to meet it. But it is not now. Is it incident to the ownership of the soil charged with the public easement? That would be as groundless to argue. Woodruff v. Neal, 28 Conn. 100. The owner of the soil, as is there said, may, "subject to the right of the public, take trees growing upon the land, occupy mines, sink water courses under it, and generally has a right to every use and profit which can be derived from it, consistent with the easement." But so far from the public being liable if their repairs make it more difficult for the owner of the soil to take the trees growing, they may themselves take them, if useful to make such repairs. So, also, as to the mines and water courses. Would a change of grade make the public liable to the...