Woodruff, Comm'rs, v. New York & N. E. R. Co.

• Decision Date: 05 May 1890
• Citation: 59 Conn. 63,20 A. 17
• Court: Connecticut Supreme Court
• Parties: WOODRUFF et al., Commissioners, v. NEW YORK & N. E. R. Co.

20 A. 17

59 Conn. 63

WOODRUFF et al., Commissioners,

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

Supreme Court of Errors of Connecticut.

May 5, 1890.

Appeal from superior court, Hartford county.

S. E. Baldwin and E. D. Bobbins, for appellant. H. C. Robinson and W. F. Henney, for appellees.

ANDREWS, C. J. Prior to the passing of the several resolutions hereinafter mentioned, the New York & New England Railroad, a double-track railway from Boston to the Hudson river, and the New York, New Haven & Hartford Railroad, another double-track railway from Boston by way of Springfield to the city of New York, crossed Asylum street, a much-traveled highway, in the city of Hartford, side by Ride and at grade. The situation was further complicated by the fact that each of said railroad companies had one or more side tracks crossing said street parallel to their main tacks, and extending considerable distance each way therefrom, and that the passenger depot used in common by said companies was immediately contiguous to said street. It was a condition of things exceptional and dangerous,—dangerous to travel along said street, and dangerous to every train on both of said railroads, and perhaps most dangerous of all to persons approaching or leaving said depot. In the year 1884 the general assembly, in the exercise of its supreme authority, determined that it was convenient and necessary for the public safety that this dangerous condition be changed by separating the grade between the street and the track of said railroads, and to that end passed a resolution, approved April 4 1884, and which is on page 1026, vol. 9, or the Special Laws. The sixth section or that resolution was amended by a resolution approved March 3, 1885, found on page 1 of volume 10 of the Special Laws in the year 1885 another resolution was passed, and approved March 26, 1885, found on page 80 of volume 10, Sp. Laws; and in 1886 still another resolution approved February 19, 1886, found on page 212, vol. 10, Sp. Laws. These are the several resolutions referred to in, and made part of, the application in the present case. In reference to these resolutions, and speaking of them all as parts of one act,—as in fact they are,—this 'court, in Woodruff v. Catlin, 54 Conn. 295, 6 Atl. Rep. 849, said: "The act, in scope and purpose, concerns the protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe high way. The legislature, having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance, dangerous to life, in the absence of action on the part either of the city or of the railroads may compel them severally to become the owners of the right to lay out new highways and new railways over such land, and in such manner as will separate the grade of the railways from that of the highway at intersection; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone, or in part by each; and may enforce obedience to its judgment. That the legislature of this state has the power to do all this for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue. "

To abolish the said grade crossing, and to insure the safety of the public travel, the legislature invested its commission with very broad powers. It was authorized and empowered to order the carrying of said tracks and the structure therefor over said Asylum street, and direct such a change in the grade of said street in its present line and direction as they shall judge necessary and proper to the end aforesaid, and to order said railroad companies, or either of them, to lay out, construct, and maintain a new line or lines of railroad for a distance not exceeding one-half a mile on each side of said street, and within 300 feet of the center lines of the present tracks of said railroads, and require any or all the present tracks within said limits to be taken up and removed, to make any and all orders relating to said improvement, and to all matters and things appertaining thereto, which they may deem necessary and proper, in the same manner and to the same extent that the general assembly itself might do and direct; and it was authorized to direct by whom, when, and how the work should be performed; and, that there might be no failure in accomplishing the purpose which the legislature had in view, it was provided how vacancies in the commission should be filled; that the decision or action of said board of commissioners, had by a majority thereof, should in all matters appertaining to its duties have the full force and authority and be regarded as the decision and action of said board; and, finally, it was authorized to apply to any court of competent jurisdiction for aid in any matter appertaining to said work, and to procure the enforcement and execution of their orders; and the courts of this state, and the judges thereof, were fully empowered, upon proceedings brought by or at the instance of said commissioners, to enforce by mandamus or otherwise the order of said commissioners, made under the authority of the said resolutions. Even with such a panoply of power, the history of the commission appointed by the resolutions shows that it had no easy task. There were divergent counsels to be harmonized; rival, if not hostile, interests to be placated, and so far as possible to be brought into accord; and there were contradictory plans to he considered, reconsidered, modified, accepted, or rejected.

At an early stage in its labors, the said commission had it in contemplation to remove the said grade crossing by a plan called the "West Side" or the "Bunce" plan, which was to change the plan of said railroad about —— feet westerly from their present line, and to carry the street over them upon a bridge, and had made orders and commenced proceedings towards carrying out that plan. But on the 11th day of March, 1887, the commission voted that the vote adopting the "Bunce" or "West Side" plan, and all other votes and orders theretofore made and passed in accordance therewith, and confirming, approving, renewing, and re-enacting the same, be, and the same were, rescinded. At the same meeting it was also voted "that the New York, New Haven & Hartford Railroad Company and the New York & New England Railroad Company are hereby ordered to carry their tracks over Asylum street, leaving a clear space between said structure and said street of not less than sixteen feet, in general accordance with the plan and drawings submitted to the commission February 4, 1887, and marked, 'Proposed station at Hartford, Conn., Feb. 15, 1887;' and for this purpose the city of Hartford is hereby directed to lower the grade of said street under said tracks two feet, and, in case of disagreement between said parties, details of construction to be hereafter determined by the commission." The plan and the drawings referred to in said vote do not appear in the record before us. It is very evident, however, from the prominent reference which it received in the vote, that the "station at Hartford" was a material, if not controlling, feature in the plan thus adopted. To carry the tracks of the railroads over the street so as to leave a clear space of 16 feet would require the structure to be commenced from a third to a half mile distant from the street. Such a structure would necessarily have to be conformed to, or be conformed to by, the station. It is therefore highly probable that the entire plan according to which the two railroads were to carry their tracks over Asylum street was made to depend upon the question of that station; the more so, when it is kept in mind that depots for passengers and freight are essential parts of the railroads themselves. State v. Commissioners, 56 Conn. 313, 15 Atl. Rep. 756.

All the parties in interest seem to have acquiesced in the order so passed. Work pursuant to the plan so adopted commenced at once, and proceeded with reasonable dispatch; so that on the 20th day of December, 1888, "the bridges and approaches thereto for the purpose of carrying the tracks of the New York, New Haven & Hartford Railroad and the New York & New England Railroad over Asylum street, in the city of Hartford, having been nearly completed in general accordance with the plans and orders heretofore made by the board," at a meeting of said commission, held on said day, at which all parties were present and were duly heard, said commission ordered as follows: "And now, after consideration, the board * * * finds that the completion of said improvement as heretofore ordered, the carrying out of the designs and instructions of the legislative acts creating the board, and public convenience and necessity, all require, and this board deemed it necessary and proper to order and direct, and we do accordingly order and direct, that the said New York and New England Railroad Company and the New York, New Haven and Hartford Railroad Company severally take up and remove their surface tracks, between the line of the face of the abutment on the south side of Asylum street and the line of the face of the abutment as now located and established on the north side of Church street, so called, within thirty days after the new depot at said Asylum street shall be occupied and used by said companies, respectively." Of the passing of said vote and order due and proper notice was given to both railroad companies. The New York & New England Railroad Company having failed and refused to comply therewith, the said board of commissioners made the present application to the superior court of Hartford for Hartford county for a peremptory mandamus upon the coming in of the alternative writ, the said railroad...