Wamphassuc Point Property Owners Ass'n v. Public Utilities Commission

• Decision Date: 04 April 1967
• Citation: 228 A.2d 513,154 Conn. 674
• Court: Connecticut Supreme Court
• Parties: WAMPHASSUC POINT PROPERTY OWNERS ASSOCIATION et al.. v. PUBLIC UTILITIES COMMISSION et al.

Page 513

228 A.2d 513

154 Conn. 674

WAMPHASSUC POINT PROPERTY OWNERS ASSOCIATION et al.. v. PUBLIC UTILITIES COMMISSION et al.

Supreme Court of Connecticut.

April 4, 1967.

Thomas J. O'Sullivan, New Haven, for appellants (defendants Smith, trustee, and others), with whom, on the brief, were Harold M. Mulvey, Atty. Gen., and John G. Hill, Jr., Asst. Atty. Gen., for appellant (named defendant).

William K. Cole, Hartford, with whom were Barclay Robinson, Jr., Hartford, and J. Rodney Smith, New London, for appellees (plaintiffs Stickney and others); with him also was Morgan K. McGuire, New London, for appellee (plaintiff Woolworth).

Joseph J. Purtill, Town Atty., for the town of Stonington, filed a brief as amicus curiae.

Before KING C. J., and ALCORN, HOUSE, COTTER and RYAN, JJ. HOUSE, Justice.

This appeal was taken by the public utilities commission and the trustees of The New York, New Haven and Hartford Railroad Company from a judgment of the Superior Court which sustained an appeal from an order of the commission directing the installation of safety protective mechanisms at a railroad crossing in Stonington. There is little, if any, dispute about the basic facts in the case, and there is unanimous agreement that the crossing is an extremely hazardous one requiring protective measures. The real dispute appears to be over who should pay for the installation.

Wamphassuc Point Road runs from route 1 in Stonington southerly to a point of land which extends into Long Island Sound. In so doing it crosses at grade the main tracks of the railroad at a location where trains proceed at high speed and the terrain sharply limits the view of persons on the road. The railroad filed a petition with the commission requesting that, under § 16-119a of the General Statutes, it (a) determine that traffic control devices be installed at the crossing with the assessment of a portion of the cost to the owners of real property located on Wamphassuc Point or (b) order the closing of the road to the Point. An obvious reason for the railroad's specific request that the proceedings be pursuant to § 16-119a rather than under other available statutory authority is the provision in that section for the allocation of costs. ¹ By its terms, § 16-119a applies, however, only to protection requirements at a private crossing, which is defined in the statute as 'any private way, private drive or any facility other than a public highway for use of pedestrians, motor vehicles or other types of conveyances, which crosses at grade any railroad track.'

.the status of this crossing was strongly contested at the hearing before the commission, the railroad asserting that the road was a private way as defined in the statute, and the town of Stonington and property owners in the area served by the road claiming that it was a public highway. After a lengthy hearing, once reopened for further evidence from the property owners, the commission concluded that the road was a private way rather than a public highway and, pursuant to § 16-119a, prescribed the installation, at the crossing, of automatically actuated gates, flashing lights and a pedestrian bell. The cost of the prescribed installation was estimated to be approximately $31,000.

From this order, the Wamphassuc Point Rpoperty Owners Association and several persons who were users of the road and owned property in the area appealed to the Superior Court. The town of Stonington did not join in that appeal but has filed a brief in this court as amicus curiae in support of the claim of the property owners that the portion of § 16-119a providing 'for a lien on premises owned by 'the person * * * that owns or has the right to use such crossing' or an assessment of costs against 'the property owner' is so vague and incapable of application to multiple owners and users in a case such as this one that it is unconstitutional.

In accordance with § 16-37 of the General Statutes, the commission certified to the Superior Court the full record of the proceedings before it, including the petition, the transcript of the hearings , the exhibits, the briefs and the commission's original and supplemental findings and orders. The Superior Court determined the appeal upon this record. It found that the Wamphassuc Point Property Owners Association was not an aggrieved person within the provisions of General Statutes § 160-35 but that the individual owners of property abutting Wamphassuc Point Road were proper parties to appeal. It concluded that Wamphassuc Point Road is now a public highway rather than a private way, and accordingly it sustained the appeal and vacated the commission's order.

As we view the appeal, the decisive issue is a very narrow one. If the road is a private way, as the commission decided it is, General Statutes § 16-119a is properly applicable, the court was in error, and the constitutionality of the cost apportionment provisions of the statute must be determined. ² On the other hand, if the road is not a private way but a public highway, as the court concluded it is, the provisions of § 16-119a do not apply, and there is no error in the judgment as rendered.

On the undisputed facts the origins of a road to Wamphassuc Point go back to colonial times, perhaps, to before 1730. The railroad crossing came into existence in 1857, and there is conflicting evidence as to whether the road was considered as a public highway by anyone before this century. There was evidence that a way of necessity to the Point was created when the right of way for the railroad line was acquired by condemnation in 1857, and the commission relied in part on evidence that in 1872 the selectmen of Stonington laid out a road over the tracks, describing it as a private way. On all the facts, the commission concluded that, regardless of how the road is presently used, it was a private way in 1883. In that year, the legislature adopted what is now § 16-98 of the General Statutes, providing that, when a new highway is constructed across a railroad, such highway shall pass over or under the railroad as the commission directs. Public Acts 1883, c. 107 § 2; see New York & N.E.R. Co. v. City of Waterbury, 55 Conn. 19, 23, 10 A. 162. Because of the provisions of this statute and of § 47-27, which proscribes acquisition of rights in or to land of a railroad company by adverse possession or user, the commission concluded that the 'treatment or consideration of this crossing as a public highway crossing subsequent to 1883 could not change it from one private in character to a public crossing in face of the statutory prohibitions set forth in Sections 16-98 and 47-27.' In other words, the commission concluded that in 1883 Wamphassuc Point Road was a private way, having been laid out as such in 1872, and that, because the statutes since 1883 have prohibited construction of any new highway across a railroad at grade, it must follow that such a road in 1963 could not be a public highway even though it had acquired all the indicia of a public highway.

In Stavola v. Palmer, 136 Conn. 670, 683, 684, 73 A.2d 831, we noted that "public highway' is tautology' and approved the dictionary definition of a highway as '(a) main road or thoroughfare; hence, a road or way open to the use of the public.' We quoted also (p. 683, 73 A.2d p. 838) from Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488, 37 A. 379, 37 L.R.A. 533: 'A highway is a public way open and free to any one who has occasion to pass along it on foot, or with any kind...