Spencer v. N.Y. & N. E. R. Co.

• Decision Date: 31 May 1892
• Citation: 62 Conn. 242,25 A. 350
• Court: Connecticut Supreme Court
• Parties: SPENCER v. NEW YORK & N. E. R. CO.

25 A. 350

62 Conn. 242

SPENCER

v. NEW YORK & N. E. R. CO.

Supreme Court of Errors of Connecticut.

May Term, 1892.

Appeal from superior court, Hartford county; Augustus H. Fenn, Judge.

Action by Dwight Spencer against the New York & New England Railroad Company for obstructing a right of way. Judgment for plaintiff. Defendant appeals. Affirmed.

Simeon E. Baldwin and Edward D. Robbins, for appellant.

Arthur F. Eggleston and Chas. U. Briscoe, for appellee.

CARPENTER, J. This is an action for the obstruction of an alleged right of way. The complaint consists of two counts. The first alleges a right of way in the public over the locus in quo, and the second a private right of way. Damages are claimed, and an injunction restraining the defendant from obstructing the way pending the suit. The answer, in substance, denies the allegations of the complaint. The case was tried to the jury, and a verdict rendered for the plaintiff on the first count, and an appeal taken by the defendant.

The defendant objected to a jury trial. The objection was overruled, and that is assigned as error. The objection seems to be that the sixth paragraph of the first count "is conversant purely with an equitable cause of action for an equitable remedy." This objection seems to overlook the fact that the allegations of that paragraph are solely for the purpose of a temporary injunction pendente lite. The finding does not show that on the trial any evidence was offered in support of these allegations. The defendant's request to charge the jury makes no reference to any such evidence, and the charge of the court submits to the jury no question pertaining to that issue. We may safely assume, then, (what was doubtless true in fact,) that the only issue submitted to the jury was the legal issue, as distinguished from the equitable. It is certainly competent for a party to invoke the aid of a court of equity to protect his alleged legal right by staying the hand of the opposite party from destroying it pending litigation; and it is equally his privilege to have the question as to the existence of his legal right tried and determined by a jury. There was no error in overruling this objection.

The second reason of appeal is" that the court erred in admitting, against the exception of the defendant, the evidence of the plaintiff that, aside from its use for railroad purposes, the use of the land by the public for purposes of passage was of common convenience and necessity." The ground of this objection, as stated to the court on the trial, was" as calling for matter of opinion, and as irrelevant, and as too remote to found any claim of dedication and acceptance on." The objection is that such evidence must necessarily be a mere matter of opinion,—an opinion in the abstract; an objection equally valid, although the witness maybe familiar with the location, and may know the needs of the public. We cannot regard the common convenience and necessity of a proposed highway as a mere matter of opinion, entirely apart from the facts on which it is based, but as a fact provable by showing the location, the surrounding property, the nature and extent of the business carried on in the neighborhood, the population, etc., supplemented by the judgment of practical men residing in the vicinity. That we rightly apprehend the scope of the objection is apparent from the fact that objection was taken to the testimony of the plaintiff himself, who must be supposed to have the requisite knowledge for forming a correct judgment. That the objection is not tenable is apparent from the fact that it suppose sand is founded upon conditions which have no existence. That such evidence is admissible is clearly recognized in Green v. Canaan, 29 Conn. 160; Guthrie v. Town of New Haven, 31 Conn. 308; New York, N. H. & H. R. Co. v. City of New Haven, 46 Conn. 258; Hall v. City of Meriden, 48 Conn. 431; Town of Cromwell v. Connecticut Brown Stone Quarry Co., 50 Conn. 472. Thus it will be seen that the argument based upon the principle that inferences may not be drawn from other inferences, and that presumptions may not rest upon other presumptions, fails for the want of application."

On the argument and in the brief the claim is made that what was necessary or convenient at the time of the trial was irrelevant; that what was then a matter of public convenience and necessity was not legitimate evidence of an acceptance by the public at a much earlier period. We do not question the soundness of that proposition; but that point was not made in the court below. Had the objection been placed on that ground, it is quite probable that it would have been sustained, and the testimony limited to the time of the acceptance.

The testimony of Henry A. Gris wold and others "that there was no other mode of access to important business places in the village,—being those on the land of the plaintiff,"—is also objected to. The objection is sustained by an argument formulated thus: "The plaintiff bad built business places on his lot. These business places were important ones in the village; therefore the village public had a right to travel over the defendant's land to get to them. The conclusion hardly seems to follow the premises." The force of this reasoning is practically destroyed by these facts: The business places were built nearly 20 years ago, and some 13 years before the defendant asserted its alleged right to fence the premises. When the places were built it is claimed that the public had been in the uninterrupted enjoyment of the premises as a highway for more than 20 years. As the public rights did not originate with the building of the "business places," the reasoning does not seem pertinent. If the rights of the public existed at the time of the building, it would seem to be clear that it is the plaintiff's privilege to have those rights continue. But, this evidence having been admitted, the defendant insists that it had a right to meet it by showing that the plaintiff, and, through him, the public, so far as the plaintiff's business buildings were concerned, had a right of way to "the plaintiff's property over the private property of others, "for the purpose of mitigating damages, and showing that there was no ground for an injunction." The difficulty with this claim is that, if it be conceded that there is a right of way over private property to the plaintiff's premises is hardly an answer to the testimony, for the existence of such a way is not inconsistent with the public use of the locus in quo. The former is not, and cannot be, a substitute for the latter. If the latter is established, the plaintiff has a right to it, as affording a more direct, feasible, and convenient access to his places of business. At most, it is a question of degree, the plaintiff still being entitled to an injunction. Even if it be admitted that the rebutting evidence was admissible on the question of damages, still the defendant is not harmed by its rejection, for the damages assessed by the jury were merely nominal.

As to the declarations of Minor White. The court permitted the plaintiff to testify that Mr. White, at the time he took down a fence on the premises, said that the land "was to be thrown out to a common, and become an inclosed piece of ground, for the purposes of the public, and for the purpose of going to the depot." Also that he had received the money in payment for the land deeded to the railroad company from a subscription paper,—being money raised by the people of Manchester. In receiving this evidence the court remarked: "I am inclined to think that, so far forth as Minor White made any declaration as to his intention in taking down this fence or opening this land to the public. I will receive it, whether it was a part of the res gest? or whether it was a declaration before...