Yale University v. City of New Haven

• Citation: 134 A. 268,104 Conn. 610
• Court: Supreme Court of Connecticut
• Decision Date: 03 July 1926
• Parties: YALE UNIVERSITY v. CITY OF NEW HAVEN.

134 A. 268

104 Conn. 610

YALE UNIVERSITY v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 3, 1926

Case Reserved from Superior Court, New Haven County; Earnest C Simpson, Judge.

Suit by Yale University against the City of New Haven to obtain a declaratory judgment. Case reserved by the superior court for advice of the Supreme Court of Errors. Questions answered.

Suit to obtain a declaratory judgment as to the power and authority of the board of aldermen of New Haven to permit the erection and maintenance of a proposed arch and bridge connecting buildings of plaintiff on opposite sides of High street in New Haven, as to the right of the plaintiff to erect and maintain such arch and bridge without permission of the board of aldermen or any officer, board, or body of the city, and as to the power and authority of any board body, or officer of the city other than the board of aldermen to permit the erection and maintenance of such arch and bridge, brought to and reserved by the superior court, upon an agreed statement of facts for the advice of this court.

Superior court advised that the board of aldermen, and no other board body, or officer of the city, has power to permit the erection and maintenance of such arch and bridge, and that the plaintiff has no right to erect and maintain such arch and bridge without the permission of the board of aldermen.

The parties to the reservation stipulated as to the facts as follows:

Yale University owns all of the land in fee on the east side of High street, in the city and town of New Haven, between Elm and Chapel Streets, being the block bounded by High, Elm College, and Chapel Streets and the site of the Yale College campus. It similarly owns in fee all of the land fronting on the west side of High street from Elm to Chapel street, except one lot, and all the land on the north side of Chapel street between High and York and west of High street. It also owns in fee the highway known as High street, subject only to the highway easement. Upon the land owned in fee by the university, and on the northeast corner of the Yale College campus and of Chapel and High streets, there is situated the building known as the Yale Art School, owned and used by the university, as a place of instruction for students in the fine arts, as an art gallery, and as a place for housing its collections of paintings and other artistic objects. It is the purpose and desire of the university to erect in the near future, directly across High street from the art school building, on the northwest corner of Chapel and High streets, and extending along the north side of Chapel street and the west side of High street, an additional building for the use of the Yale School of the Fine Arts, the chief purpose of which will be to provide a fitting and safe art gallery and place for the safe-keeping and exhibition of the present and future collections of the Yale School of the Fine Arts, and of such other collections as may be there kept and exhibited from time to time, as well as for the instruction and education of its students. Architect's drawings for the new art school building have been prepared and approved, and it is the purpose and desire of the university that this shall be a fitting companion building to its Harkness memorial quadrangle situated on the west side of High street further to the north. An integral and important part of the plans and drawings of the architect for the new building consists of an ornamental overhead projection, arch, and bridge across High Street about 68 feet north from the north building line of Chapel street, connecting the mezzanine and second stories of the existing art school building on the northeast corner of Chapel and High streets with the proposed new building on the opposite side and the northwest corner of these streets. The purpose and objects of the proposed ornamental projection, arch, and bridge are chiefly to promote the efficient and convenient operation of the old building and the proposed new building as one plant by one organization of the Yale School of the Fine Arts, and to present an exceedingly pleasing architectural scheme and effect. The distance from the highest point in the highway in the middle of the street to the bottom of this structure would be 17 feet, and at the point where it crosses the outside lines of the sidewalks the clearance would be 14 feet. This structure would in nowise interfere with travel or traffic through, over, and upon the surface of High street by vehicles or by pedestrians either on the sidewalks or in the street way, and it would in nowise interfere with any legitimate use of High street as and for a highway, and no part of it would touch the ground within the highway limits at any point. Due to the age and manner of construction of the old building of the Yale Art School, the fire hazards and other risks to the collections and objects of art of the university housed therein are great, and it is one of the purposes and desires of the university that the proposed new building shall be of modern fireproof construction, and a place where such collections and other future collections will be as safe as it is humanly possible to make them, and to that end to construct the new building as speedily as possible. The proposed structure, together with the new art school building, if erected, will, with existing buildings of the unversity in the same immediate vicinity, form a group notable for their architectural beauty, and add greatly to the architectural beauty of the city and to the usefulness of the university to the community of New Haven. The plaintiff university has caused to be duly filed an application to the board of aldermen of New Haven for an order or ordinance permitting the construction, erection, and maintenance by the plaintiff of the proposed ornamental projection, arch, and bridge. Doubts have arisen as to the rights and powers of the parties in the premises.

Bona fide questions arising upon these facts which require settlement and upon which the advice of this court is desired are as follows:

(1) A declaratory judgment which shall declare whether or not the board of aldermen have the right, power, and authority to permit the construction, erection, and maintenance of the proposed ornamental projection, arch, and bridge.

(2) A declaratory judgment which shall declare whether or not Yale University, as the owner of the fee of the entire highway at the point in question and of the land on both sides thereof, has the right, power, and authority to construct, erect, and maintain the proposed ornamental projection, arch, and bridge without permission from said aldermen, said city, or any officer, board, or body connected therewith.

(3) A declaratory judgment which shall declare whether or not any board, body, or officer of the city, other than the board of aldermen, has any right, power, or authority to permit the construction, erection, and maintenance of such ornamental projection, arch and bridge.

Frederick H. Wiggin, of New Haven, for plaintiff.

Louis Feinmark, of New Haven, for defendant.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

WHEELER, C.J. (after stating the facts as above).

Yale University owns the fee to the land on either side of High street in New Haven, and seeks a declaratory judgment as to whether it has authority, or can be given authority, to build an ornamental arch or bridge from its old art school building on the east side of High street to a new proposed art school building to be erected on the west side of high street, being the northwest corner of High and Chapel Streets. It also owns the fee to High street, subject to an easement for highway purposes in the public. This easement gave the public, under the common law, the right to pass to and fro upon this street for every purpose of travel and traffic, and the right to move every kind of property over this street, in a reasonable manner, so long as this does not impose an additional servitude upon the fee, with the incidental right in the public to do all acts thereon necessary to keep it in repair and using therefor " the soil and materials upon it in a reasonable manner for the purpose of making and repairing it." Peck v. Smith, 1 Conn. 132 (6 Am.Dec. 216); Imlay v. Union Branch Railroad Co., 26 Conn. 249, 68 Am.Dec. 392. The early common-law conception of the extent of this public easement has grown with the public necessity to include, not only the surface and a depth sufficient to make and keep the surface in proper condition for travel, but so much of the highway beneath the surface as is required for public purposes, such as the laying of sewers, catch basins, drains, hydrants, and pipes for conveying water, gas, electricity, and telephone and telegraph wires. It also has come to include not alone the right of travel and transportation upon and over the highway, but the right to erect poles thereon for public utilities, and to string wires from pole to pole, together with the equipment upon the poles for carrying electric power, telephone, and telegraphic wires. None of these uses of the surface above or beneath the highway add a new servitude to the highway, or interfere, practically, with the fee of the abutter in the highway.

It has long since been recognized by user, and judicially, that this enlargement of the public easement exists through public necessity when the rights of the abutter in the fee of the highway have not been materially impaired or restricted. We say in Canastota Knife Co. v. Newington Tramway Co. et al., 69 Conn. 146, 36 A. 1107:

" The common-law definition of the public right in a highway did not embrace in terms, but it did in spirit, its

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