Warner v. N.Y., N. H. & H. R. Co.

• Decision Date: 11 March 1913
• Citation: 86 A. 23,86 Conn. 561
• Court: Connecticut Supreme Court
• Parties: WARNER v. NEW YORK, N. H. & H. R. CO.

86 A. 23

86 Conn. 561

WARNER

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

March 11, 1913.

Appeal from Superior Court, Hartford County; Ralph Wheeler, Judge.

Action by Hobart A. Warner against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

The first count of the complaint was as follows: "(1) The plaintiff is a resident of Bristol, Conn., and the defendant is a railroad company created by act of the General Assembly of the state of Connecticut and operating a line of railroad between Fishkill Landing and Boston. (2) The plaintiff owns a house situated on a plot of land on the west side of Henry street, in said Bristol, which land is bounded: North, by the right of way of the defendant; east, by Henry street; south, by other land of the plaintiff; and west, by land of John H. Hayes. (3) Said Henry street is a public highway, and, previous to the act herein complained of, furnished a convenient mode of access from the premises of the plaintiff to the residential and business sections of the town of Bristol, which lie to the north and west of said property of the plaintiff. (4) On the—day

of—, 1908, the defendant made application to the Railroad Commissioners to close that section of East and Henry streets occupied by their right of way and to construct an underpass midway between the two. (5) Said Board of Railroad Commissioners, after hearing had, granted said application of said defendant, and passed an order July 30, 1908, setting forth particularly the new lay-out for said defendant in great detail, and included in said order the following: 'All the work incident to the foregoing alterations and changes shall be performed, and all lands necessary therefor shall be procured by said railroad company at its own expense, including all legal damages connected therewith.' (6) In pursuance of said order, the defendant proceeded to close East and Henry streets and construct the new pass way between the two. (7) The closing of Henry street, as above set forth, leaves the property of the plaintiff at the end of a cul-de-sac and has reduced its value from $2,700 to $1,800. (8) The plaintiff has made demand upon the defendant for compensation for the injury sustained by him on account of said acts of the defendant, and has been refused."

The second count was: "(1) Paragraphs 1, 2, 3, and 4 of the first count are hereby made a part of the second count. (2) The plaintiff opposed the application above set forth at the hearing thereon held by the Railroad Commissioners and objected to the lay-out proposed in said application on the ground that his property above described would be seriously damaged thereby. (3) The defendant, by its official representative, in answer to said objection to the plaintiff and in answer to many other property holders there present, stated positively that the plaintiff had nothing to fear, and promised that if the plaintiff was in any way damaged by the proposed change in highways he would be fully compensated by the defendant."

The complaint demurred to and annexed exhibits disclose the following facts: The plaintiff is the owner of land with a house thereon fronting easterly upon Henry street in the town of Bristol, and adjoining on the northerly side the lay-out of the defendant. Henry street connects Riverside avenue and Prospect street, a distance of about 500 feet, and its course is substantially at a right angle with each of those streets. Before the improvement hereinafter described it crossed the right of way and tracks of the defendant at grade. The point of crossing was about midway of the 500 feet. In 1909 the Railroad Commissioners, upon the application of the defendant as provided by statute, ordered the elimination by the defendant of this and another nearby crossing in accordance with a plan and specifications which called for the closing of the two existing crossings, including that in Henry street, and the discontinuance of that street within the railroad right of way. The street was not otherwise to be interfered with, and was to remain unchanged. For the accommodation of travel across the right of way a new street was provided for extending from Riverside avenue to Prospect street substantially parallel to Henry street and about 400 feet easterly of it. This street was to be carried over the defendant's tracks. The defendant complied with the order of the Railroad Commissioners, and executed the work as ordered. As a result, the plaintiff and all other persons desiring to approach his premises from the north, or to depart from them in that direction, are unable to pass across the defendant's right of way in the direct line of Henry street, but are compelled to take a more circuitous route. The value of the plaintiff's property has been reduced by the change in the crossing about one-third, to wit, $900. The residential and business portions of Bristol lie to the west and north of it. Other material facts are sufficiently stated in the opinion.

Newell Jennings, of Bristol, for appellant.

Benjamin I. Spock, of New Haven, for appellee.

PRENTICE, J. (after stating the facts as above). The plaintiff, upon the facts alleged in the complaint, is the owner of land bounded on one side by the right of way of the defendant and abutting in front upon a public highway. This highway formerly crossed the defendant's tracks at grade, and extended each way therefrom some 250 feet to a connection with another street. By means of this connection, access to and egress from the plaintiff's land in either direction by means of the system of streets in that locality was afforded. The action of the defendant of which he complains has not resulted in closing, obstructing, or impairing for use the highway adjacent to his premises. Neither the grade, character, nor serviceability of the street at that point has been affected. Access to and egress from his land can be had as freely as ever. The sole ground upon which he...