Town of Meriden v. Bennett

• Decision Date: 24 July 1903
• Citation: 55 A. 564,76 Conn. 58
• Court: Connecticut Supreme Court
• Parties: TOWN OF MERIDEN et al. v. BENNETT et al.

55 A. 564

76 Conn. 58

TOWN OF MERIDEN et al.

v. BENNETT et al.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Case reserved from Superior Court, New Haven County; William T. Elmer, Judge.

Action by town of Meriden and others against Alfred S. Bennett and others. Case reserved for the advice of the Supreme Court on facts found. Judgment advised for defendants.

The following is a plat of the premises in question:

William Li. Bennett, for plaintiffs.

Charles Kleiner and D. W. Coleman, for defendants.

HALL, J. On the 19th of July, 1901, the defendants in this proceeding, who are six citizens of the town of Cheshire, brought a complaint to the county commissioners of New Haven county, under section 2674, Gen. St. 1888 (section 2021, Gen. St. 1902), alleging that a certain highway in the town of Meriden, extending from a point near Hough's Mills, so called, northeasterly along the east bank of the Quinnipiac river to the River Road, so called, was out of repair, obstructed, and impassable. This complaint came before the county commissioners on the 24th of September, 1901, and by continuance on the 3d of October, 1901, when the parties were heard, and on the 17th of May, 1902, the county commissioners found that said highway was out of repair and obstructed, by reason of the embankments upon which the work was constructed having fallen in, and for other reasons, and ordered the selectmen of Meriden to repair said road by rebuilding said embankments and removing said obstructions on or before the 1st of July, 1902. The present action is an appeal to the superior court by the town of Meriden and one of its citizens from such order, under section 2677, Gen. St. 1888 (section 2024, Gen. St. 1902). The reasons for such appeal, as stated in said proceedings, are: "(1) Said so-called public road or highway was not at the time of said hearing before said board, and at the time of said decision, a public road or highway. (2) Said so-called public road or highway was by the selectmen of the town of Meriden on the 1st day of August, 1901, duly and legally discontinued as a public road or highway, which action of the selectmen was on the 2d day of October, 1901, duly, approved by the town of Meriden. (3) At the time of said hearing and said order said so-called public road or highway had been legally discontinued."

In support of the first of these reasons of appeal, it is contended by the plaintiffs that the railroad commissioners, in ordering on the 25th of June, 1889, as hereinafter described, that the location of a certain highway be changed so that it should not cross the tracks of the Meriden, Waterbury, etc., Railroad Co., at Hough's Mills, but should be connected with other existing highways by a new highway, of which the highway ordered to be repaired is a part, exceeded their powers. In support of the second and third reasons of appeal, the plaintiffs claim (1) that said new highway, a part of which was ordered by the county commissioners to be repaired, was not in fact laid out by the railroad commissioners, but was laid out by an agreement between the said railroad company and the selectmen of Meriden; and t2) that, whether laid out by the railroad commissioners or by the selectmen under such agreement, it was within the power of the selectmen of Meriden to discontinue that part of said new highway within their town, since such highway was not laid out either "by a court or the General Assembly," within the meaning of section 2708, Gen. St. 1888 (section 2056, Gen. St. 1902). which provides that "the selectmen of any town may, with its approbation, by a writing signed by them, discontinue any highway or private way therein, except when laid out by a court or the General Assembly."

With reference to these reasons of appeal and said claims of the plaintiffs, the following facts were, in substance, found by the superior court, by agreement of the parties: The highway, the northerly part of which has been ordered repaired, and the whole of which we shall call the "New Highway." extends for a distance of about two-thirds of a mile along the easterly side of the Quintnipiac river, about one-half of it being in the town of Meriden, and the remainder in the adjacent town of Cheshire, from a highway at its northern terminus called the "River Road" to a highway at its southern or western terminus called the "Cheshire Road." Said River Road crosses the Quinnipiac river, and the Meriden. Waterbury, etc., Railroad, at a point near the northern terminus of the new highway, and extends southerly along the west bank of the river, crossing the Cheshire Road, which also crosses the river and the railroad, at a point near the southern or western terminus of the new highway. In June, 1887, the Meriden, Waterbury, etc., Railroad Company submitted to the railroad commissioners, for their approval, the layout of its road along the west bank of the Quinnipiac river, between the river and River Road, by which the railroad would not only cross the River Road and the Cheshire Road at the points above described, but would also cross, at grade, at a point near Hough's Mills, about midway between said two crossings of the River and Cheshire Roads, another road, which may be designated as the "Hough Mills Road," running from the town of Cheshire westerly across the river, and into the town of Meriden. and connecting with the River Road a short distance west of said proposed crossing of the Hough Mills Road. Said Hough's Mill Road was in general use between said towns. On June 30, 1887, the railroad commissioners, by their order in regard to the streets and highways proposed to be crossed at grade by said railroad, "declined" to accept said proposed layout and location, but by their said order authorized the railroad company "to so alter the location of said streets and highways, and to raise or lower the same at said crossings as to cross over or under the same, as [may] be agreed upon with the selectmen of the towns, * * * or, in case of failure to agree," then as might thereafter be ordered by the railroad commissioners. The town of Meriden was a party to said proceedings. Thereupon, in June, 1888, the town of Meriden discontinued a portion of said Hough's Mills Road on the west side of the river from the point where said road connects with the River Road to a point 112 feet easterly, near Hough's Mills; including that part of said highway which was to be crossed by the railroad. The town of Cheshire appealed from said action of the town, and by agreement of the parties a judgment was rendered setting aside such discontinuance. While said appeal was pending the railroad company constructed its railroad at grade over said discontinued portion of the Hough Mills Road. In May, 1889, the directors of the Meriden, Waterbury, etc., Railroad Company, apparently under section 3489, Gen. St. 1888 (section, 3713, Gen. St. 1902), brought an application to the railroad commissioners, alleging that public safety and convenience required an alteration in the method of crossing and in the location of said Hough's Mills Road. The towns of Meriden and Cheshire appeared by their selectmen, and were heard in said proceeding, and the railroad commissioners on the 25th of June, 1889, made this order: "Now, therefore, on consideration, with the approval and consent of the selectmen of both of said towns, we do authorize and empower said railroad company to change the location of said highway so that the same shall not cross said track at said Hough's Mills, but shall be connected with other existing highways by a new highway [the new highway in question] sixty feet in width, to be laid out and located in the place and manner delineated on a map thereof on file in this office. * * * Said highway to be constructed and finished to the satisfaction of the selectmen of said towns of Meriden and Cheshire, or, in case said company cannot agree with said selectmen, then to the satisfaction of this board. And when said new highway is completed the existing crossing at Hough's Mills to be closed, at right of way of said railroad. * * *" The railroad commissioners having refused a request of the railroad company for a modification of this order, the railroad company complied with the same. On the 12th of May, 1891, the railroad company brought its application to the railroad commissioners, alleging that it had constructed said new highway in a good and substantial manner, and to the acceptance of the town of Cheshire, but that the town of Meriden unjustly refused to accept the same, and that it was unable to agree with the selectmen of Meriden as to its acceptance, and asking the railroad commissioners to inspect the road, and, on finding it properly constructed, to direct it to be opened, and the existing crossing at Hough's Mills to be closed as a highway. The towns) of Meriden and Cheshire were made parties to this proceeding. The town of Meriden objected at the hearing to the acceptance of the new highway, mainly upon the ground...