Canastota Knife Co. v. Newington Tramway Co.

Baldwin, J.

It is the prevailing doctrine in the United States, and was settled, as respects this State, in the case of Imlay v. Union Branch Railroad Co., 26 Conn. 249, that the location of an ordinary steam railroad upon a highway imposes an additional burden upon the soil, for which the owner of the fee is entitled to demand compensation.

The Imlay case was put upon the ground that no substantial, practical, or even technical identity exists between the use of land for a highway and for a steam railroad. One of the differences pointed out by the court was that the railroad usually was and always might be so made as to be inconvenient and even impassable to ordinary travelers, the construction of its embankments and bridges being unadapted to the use of such vehicles as ply over a common road. Another was, that every individual had an equal right of passage over a highway, and therefore that all must use this right so as not to prevent or obstruct its exercise by others; while a railway could only be built and operated by virtue of the possession of a special privilege, independent of and derogating from the general privileges belonging to the public, and which created a perpetual right against the proprietor of the fee in favor of a person—the proprietor of the railroad—to whom before he bore no legal relations whatever. It was pointed out that the discontinuance of a highway traversed by such a railroad would still leave the land subjected to the burden of supporting and serving the latter; since its location upon the highway was made under an express and independent grant by the State of a new and distinct easement.

The essence of the decision was that the grant of a railway franchise by the legislature, authorizing the occupation of land subject to a highway in such a manner as substantially to interfere with the proper uses of a highway, or substantially to change them by introducing another not practically identical with the original ones, was the bestowal of a power, the exercise of which charged the land with a new servitude.

In determining what are the uses of a highway under the common law of Connecticut, and whether its occupation by an electric street railway can be one of them, the preamble of our earliest statute upon that subject speaks with some authority. It declares that “ the mainteineing of high wayes in a fitt posture for passage according to the severall occassions that oecurre, is not onety necessary for the comfort and safety of man and beast, but tends to the proffitt and advantage of any people, in the issue.” Code of 1650, Title, Highe Wayes; 1 Col. Ree. 527. This court has said that in these words is found a statement of the principles which should govern and ever have governed the legislation of this State as to the maintenance of highways, and that, as they have regard not only to providing for the comfort of man and beast but for the profit and advantage of the people, they must be held to have originally “ contemplated all such improvements in structure and grade, as ‘occasions’ occurring in consequence of the advancement and growth of the country, and particularly of populous and growing cities, should make necessary.” New Haven v. Sargent, 38 Conn. 50, 54; Shelton Company v. Birmingham, 61 id. 518, 525. The common law of Connecticut is thus somewhat more favorable to the rights of the public as against the owner of the soil, than the common law of • England. There no one, except the owner of the fee, can use a highway for any other purpose than that of passage, or what may be subservient to that, unless he can claim under some special franchise. Regina v. Pratt, 4 El. & Bl. 860, 865; Goodson v. Richardson, L. R. 9 Ch. App. Cas. 221. Here an individual can go or linger upon one, solely from motives of curiosity. Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 36.

Whoever holds property subject to a public trust holds it subject to the same extent, to public control. The owner of the fee in a highway holds his estate subject to a public right, which is equally, and for similar reasons, subject to public control so far as may be necessary to protect the public in the full enjoyment of whatever belongs to them. This power of conti’ol resides primarily in the General Assembly. It is their judgment that street railroads furnish a proper means of accommodating public travel on highways ; and the judicial department of the government will not pronounce charters granted for their construction to be invalid because they make no provision for additional compensation to the owners of the soil, unless forced to the conclusion that to give them effect would necessarily sanction an invasion of private right. In Goodson v. Richardson, L. R. 9 Ch. App. Cas. 221, 224, Lord Chancellor Selborne remarked that “Parliament is, no doubt, at liberty to take a higher view upon a balance struck between private rights and public interests than this court can take.” The same thing is true of our General Assembly. The reasonableness of its action in any matter within its appropriate jurisdiction is not a matter of judicial question, unless it be plainly apparent that some constitutional right or fundamental principle of society has been invaded. Bissell v. Davison, 65 Conn. 183, 192.

A street railway, such as that authorized by the charter of the defendants, differs from the ordinary railway running from one State or town to another, part of which may chance to be located on a highway, in certain essential characteristics. Its tracks conform to the established grade of the highway. It has no exclusive privilege as to their use. Laufer v. Bridgeport Traction Co., 68 Conn. 475. Its mode of using the street does not necessarily or naturally render that part of it which it occupies, whether by its tracks or its poles and wires, impassable or seriously inconvenient for ordinary travel. Such a street railroad may be, and up to the present time such roads have usually been, so constructed and so used and operated as to be distinguished from the ordinary steam railroad in every one of the particulars stated in the Imlay case, though undoubtedly electric roads do approach steam roads more and more in construction and in the manner of operation.

But as yet there is a substantial identity in many particulars between the use of a highway by an electric car and that by an ordinary vehicle, both moving upon the same grade. The test whether the land in the street is, by the imposition of the tracks, subjected to a new use, must in some measure be a question of degree. So far as the change of power is concerned, the substitution of electricity for animal power to draw cars running upon surface tracks, is no greater innovation on the ancient uses of a highway than the introduction of the bicycle, with its complicated arrangement of mechanical contrivances for multiplying motion and increasing speed, or the horseless carriage operated by the use of petroleum. Steam carriages, with broad tires, and sometimes 'running in heavily laden trains of two cars and a locomotive, have been used on the solid and level highways of England for many years, under appropriate regulations prescribed by Act of Parliament (41 & 42 Vict. Chap. 77), to secure the public safety. In some of the great cities of Europe tramways, built into the streets, have been in use for centuries as a means of facilitating ordinary teaming. They are constructed of long and narrow slabs of marble, laid in parallel lines, with cobble stones between, on which the horses find a secure footing, while the wagons they draw run easily over the smooth marble. Biot's Manuel du Constructeur de Chemins de Fer, p. 4. Such marble tracks do not differ in kind from steel tracks, and it is a matter of common knowledge that teamsters often drive upon the rails of street railroads, when the cars are not passing over them, for convenience in hauling heavy loads,—a use to which it would be impossible to put the differently shaped rails of the ordinary steam railroad. Street car tracks, therefore, in some degree, serve to promote the common right of passage over the highway; while the “ standard” railroad track never can.

The electric railway, like every other, can be laid and operated only under a special franchise; but it is one which, though independent of, does not necessarily derogate from, the general privileges belonging to the public; for if the road be constructed and operated with due regard to the convenience of ordinary travelers, they can use every portion of the highway substantially as they did before. While a car is occupying or approaching any particular portion of the tracks, other travelers must indeed give way; but it is only because they can turn out, and the car cannot. Without any such absolute necessity, a loaded team must, under our laws, turn aside when overtaken on the road by a lighter vehicle. This statute (General Statutes, §2691) has been in force for a hundred years, and its validity has never been challenged. Hotchkiss v. Hoy, 41 Conn. 568.

In the Imlay case reliance was also placed on the right to continue the operation of a steam railroad built upon a highway, although the highway itself should be legally discontinued. Assuming that right to exist, no such doctrine can be asserted in respect to a street railway of any description. That is an incident of the street. Its main purpose is, presumably, and should be in fact, to facilitate and further the use of every street through which it passes. If it should run over a thinly settled country road between two cities, this would be no less true. Highways are for through travel as fully as for local travel. A street railway laid over them must always serve both purposes, to a greater or less extent. If it fails in either, it loses its identity with ordinary highway use. A steam railroad ordinarily serves but one, and thus has not such identity. It connects different towns or villages, and seldom has more than one station in each. A street railway without a street to run on, and to serve and accommodate as it runs, would be an anomaly. The charter of the Newington Tramway Company certainly does not assume to create anything of that description. Had it done so, the franchise granted would have been foreign to the uses for which highways have been established. When a street is discontinued, any railway tracks which may have been laid in it are no longer upon land burdened with the public easement of a highway, but rest upon private soil, as truly as if no highway had ever encumbered it.

New York is the only State in which the courts have accepted the position that a railroad, designed for the transportation of passengers, or passengers and property, and not operated by steam, imposes a new servitude on the soil of a city or village street; and this conclusion is there rested on the ground that the railway company has a right of an exclusive character to the use of its tracks, which is, to a certain extent, paramount to the general public right of travel. Craig v. Rochester City & Brighton R. R. Co., 89 N. Y. 404. In this State, while we have held that the railway structure is the private property of the company, and in the nature of real estate, we have held also that its right to pass over it is no greater than that of any other member of the community. New Haven v. Fair Haven Westville R. R. Co., 38 Conn. 422, 430; Laufer v. Bridgeport Traction Co., 68 id. 475. The legislature can regulate the use of this structure as fully as they can regulate travel over any other part of the highway. It has seen fit to prohibit, under penalty of fine and imprisonment, the use, except in special cases, by order of the Superior Court or one of its judges, of street railway tracks by others than their owners, for vehicles with running gear specially fitted to the rails, and carrying passengers for hire; but otherwise their use is left free for all. General Statutes, §3604; Public Acts of 1893, p. 314. Should the charter of a street railway company be repealed, there is high authority for the position that, in the absence of any vested rights of contract in third parties, all private property in its tracks and road-bed would be extinguished. Greenwood v. Freight Co., 105 U. S. 13, 21. It is, at most, a limited and qualified property right. The company owns not land, but a right to the use of land, and a right inherent merely in the public easement of the highway, limited to the life of such easement, and belonging only to the possessor of a subsisting franchise from the State. 1 Redfield on Railways, 317, 319.

No grant of any power of eminent domain is to be found in the charter of the Newington Tramway Company. If, therefore, the franchise to construct a street railway, which it assumes to grant, cannot be exercised in case of objection on the part of any of the abutting landowners, without the aid of compulsory proceedings, it must fail of effect, and fail because the charter is in conflict with the Constitution, in that it purports to allow the taking of private property for public use without just compensation. Howe v. West End Street Railway Co., 167 Mass. 46, 44 Northeastern Rep. 386, 387. The underlying question thus presented is one of statutory rather than of constitutional construction. It is settled that whenever the property of the owner of the fee in a highway is subjected by law to an additional servitude, it is taken, and he is entitled to just compensation. Nicholson v. New York & New Haven R. R. Co., 22 Conn. 74, 85. The matter now to be determined is whether such property is subjected by this charter to an additional servitude ; and that depends on the true limits of the public easement in a highway.

The best definition of a public easement is often that given by public use. A highway is a way over which the public at large have a free right of passage. It is constructed and maintained in their interest. This liberty of passage may always be exercised in such a manner as may, at the time, be customary and reasonable, having in view both the convenience of the public and the proprietary rights of the owners of the soil. As to what is reasonable under these limitations, every age, speaking by its common law, must of necessity judge by its own standard. A common use of the highways in Connecticut for a period longer than the life of a human generation has been that by street railways. So far as horse railroads are concerned, it was held to be a proper one by the Superior Court in a case decided in 1860, and published in our reports in 1866. Elliott v. Fair Haven & Westville Railroad Co., 32 Conn. 579. While that authority is not one binding upon this court, and there are expressions in the opinion of Judge Ellsworth to which we should hesitate to give unqualified assent, no appeal was taken from his judgment, and the doctrine which it announced has so far met with public acquiescence, that no owner of the soil subject to a highway has since set up a claim to compensation for the construction of a street railway upon it, until the institution of the present suit. During the intervening period, numerous franchises for such railways have been granted and exercised. Many horse railroads have been thus built, and many electric railroads. Large sums have been invested in them by shareholders: Mortgages of the franchises and of the railroad property acquired under them have been authorized. Special Acts, Vol. VI, p. 611; General Statutes, § 3606; Public Acts of 1893, p. 314. Mortgage bonds, thus secured, have been issued to the amount of millions.

This course of legislation, and all that has been done under it, with the support of general public acquiescence, constitute a practical exposition of the common law of Connecticut as to the character of the servitude in the ease of a highway, which must outweigh any narrower definitions that may have been framed either by English or American courts, in former centuries, and in the presence of different social conditions; however often these may have been repeated in later decisions.

It has always been claimed as the distinguishing feature of the common law that, because it is unwritten and so untramelled by set forms of words framed in the imperative terms of statutory command, it can keep more in touch with the times than any system of jurisprudence centering in a code. “ Quiequid agant homines,” said Lord Mansfield, “ is the business of courts, and as the usages of society alter, the law must adapt itself to the various situations of mankind.” Barwell v. Brooks, 3 Dougl. 371, 373.

The common law definition of the public right in a highway did not embrace in terms, but it did in spirit, its use by public authority for laying water-pipes, drains, cisterns or hydrants, from which to draw in case of fire, and gas-pipes, and as a site for public sign-posts, and pumps; and to that extent it has long been enlarged by practical construction. Cone v. Hartford, 28 Conn. 363, 375; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, 38; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 497, 530; Cooley on Constitutional Limitations (6th ed.), 682. Grants of such privileges to private aqueduct companies for laying their pipes to supply private consumers, without making any payment to the owners of the soil, have been freely made by the General Assembly for a hundred years. In 1798 such permission was granted to the Windsor Aqueduct Company. 1 Private Laws, 63. In 1800 a similar grant was made to the Proprietors of the Aqueduct in New London; and in 1802 they were further authorized to lay their pipes on private grounds; but in that ease only on paying all damages to the landowner, as they might be ascertained either by agreement or condemnation proceedings. 1 Private Laws, 51, 52. A similar distinction was made in the charter of the Sharon Aqueduct Company, in 1802. 1 Private Laws, 60.

The owners of the fee in highways constitute a large part of the population of this State. They have known of this course of legislation, and of the gradual extension in other directions of the use of their ground, under authority of the State. As part of the public, they have shared in its benefits, in respect to the land of others. They have acquiesced in all that has been done, by not objecting to it, or not insisting on any adverse claims by judicial proceedings. The common law of Connecticut has been shaped by common usage in Connecticut. We have left it to our common law to define the rights acquired by the public upon the establishment of a highway; and as common law is but another name for customary law, custom must determine, in case of doubt, how highway travel can best be facilitated.

It is certain that every reasonable presumption should be made in favor of the validity of grants by the legislature of the right to construct railroads upon highways. They can be so built or operated as to be a substantial interference with public travel, or to work a new, direct, and special damage to the proprietor of the soil. They can, on the other hand, be so built and operated as to serve the public, without injury to the landowner. Charters which, like those of the ordinary steam or “standard” railroad, contemplate and require a mode of construction or operation of the former description, impose a new servitude on the soil. Charters which go no farther than to authorize such a mode of construction or operation, as one means of accomplishing their purposes, impose no new servitude, and invade no private rights, unless resort is in fact had to such means; in which event they do, and compensation may be required.

Two rights are to be guarded with equal care,—that of the individual landowner', and that of the public at large; but his estate is the servient tenement. He has no rights which are incompatible with the fullest enjoyment of the public easement.

A street railway may be so constructed and operated as to be a proper means of facilitating public travel. It may also be so constructed, but not so operated. It is, in such case, a means that may be and is abused; but for any abuse the law can suppty the remedy. Nor would the legislative grant, in such a case, avail to deprive the owner of the soil of his right to compensation.

If it is unsafe to run more than a single car at a time, their only one car at a time can be run. • If it is unsafe to run at a high rate of speed, then a lower rate of speed must be maintained. If a railway be so worked in any manner as to create a public nuisance, the State’s Attorney can readily find means to compel its operation with proper regard to the public interests.

If either the mode of construction or of operation be such as to make it a substantial impediment to public travel or a proximate cause of special damage, of a new description, to the owner of the soil, the law will give redress. Such acts can have no warrant from the existing servitude or the legislative franchise. If an electric railway is operated by the use of overhead wires, and these are found to be a cause of danger, they can be replaced by some better contrivance. Central Railway Electric Company’s Appeal, 67 Conn. 197, 211. If the highway is obstructed by cuts or embankments, they can be made the subject of civil or criminal proceedings. If special and peculiar damage is done or threatened to any particular landowner, whether the proprietor of the fee in the highway or of adjoining land, his rights of action are clear and certain.

The plaintiff’s complaint sets up that it owns the fee in certain land within the limits of a highway in Newington, upon which the defendants threaten and intend to construct a street railway. An injunction is claimed on two grounds: first, that the charter of the Newington Tramway Company (Private Acts of 1898, p. 1035) imposes a new burden on the plaintiff’s soil; arid second, that it has wrongfully conspired with the other defendants, the Central Railway and Electric Company and the Hartford Street Railway Company, to use its charter for laying a railway track upon the land in question, under a location which diverges substantially from any of the routes authorized, and is in fact another route designed to constitute merely part of a through railroad between New Britain and Hartford.

The charter in question is not one which, under the principles which have been stated, contemplates and requires the construction of a railway in such a manner as substantially to obstruct ordinary highway travel, or necessarily to cause special damage to any landowner; and it is not alleged that .it is intended to construct it so that any of those effects would be produced. There was, therefore, no error in sustaining the demurrer, so far as this ground of relief was concerned.

But the construction of any kind of railway in a highway, the soil of which belongs in fee to the adjoining proprietors, is a trespass upon their land, unless it has been duly authorized by law. The use of a highway for ordinary travel is a matter of common right; but to lay down upon it a fixed structure, of a permanent character, designed for the use of vehicles of a peculiar description, moving upon invariable lines of track, cannot be justified without a special franchise, proceeding from the State. Regina v. Train, 2 Best & Smith, 640. That such vehicles may be open to all on equal terms, and so may serve to facilitate the common use of the highway by the general public, is not, of itself, enough. A stone pavement might convert a miry and neglected road into a convenient thoroughfare; but no one could enter and construct such an improvement on land owned in fee by another, without authority derived from appropriate legislation.

A franchise was granted to the Newington Tramway Company, for the construction of a street railway, to be operated by means of any power except steam, over certain routes particularly specified. A location upon the plaintiff’s land can be within its terms only if made as part of a location which substantially follows some one of the routes specially described. Each of those routes is an entirety. State v. Hartford & New Haven R. R. Co., 29 Conn. 538. The through route, which the defendants propose to constitute between New Britain and Hartford, must also be viewed as an entirety, in determining the purpose of laying tracks upon the plaintiff’s land, and the effect of that purpose. New England Railroad Co. v. Central Railway and Electric Co., 69 Conn. 47; Boston Lowell Railroad Corporation v. Salem & Lowell R. R. Co., 2 Gray, 1, 31, 39; Pennsylvania Railroad Co. v. Montgomery County Passenger Railway Co., 167 Pa. St. 62, 73, 31 Atl. Rep. 468. A franchise to build a railroad from Hartford to Derby would be no warrant for building one between Hartford and Norwich, nor yet for building one in Hartford which it was intended to continue, not to Derby, but to Norwich. Nor would the State alone have the right to object. Any property holder in Hartford upon whose land such a location might be made, whether that land was or was not within the limits of a highway, could claim the protection of the courts. The fact that the contemplated railroad would be a means of accommodating public travel between Hartford and Norwich, or local travel in Hartford upon a highway over the land of such proprietor, would be immaterial. To construct it without legislative authority would be a trespass upon his estate, for which he could support an action at common law.

Such a remedy, however, would be not an adequate one. The injury in the case supposed, and the injury threatened in the case at bar, is a continuing one, and while the tracks would constitute a public nuisance, the plaintiff would suffer a special and peculiar damage. Burlington v. Schwarzman, 52 Conn. 181; Trowbridge v. True, ibid. 190, 199. The wrong alleged is an invasion of its freehold, under a plea of authority which fails, because unsupported by law. That an injunction is a proper remedy where the justification is under an unconstitutional statute, is undisputed. Imlay v. Union Branch Railroad Co., 26 Conn. 249, 260. Such a statute is not law. It cannot, therefore, serve as a protection to those who assume to act under its provisions. But a statute which is law, is no better protection to those who assume to act under its provisions, but in fact act outside of them. It follows that the demurrer should have been overruled, on the ground thait the defendants had no franchise justifying, or purporting to justify, their threatened invasion of the plaintiff’s freehold, for the purpose which they had conspired to accomplish.

There is error in the judgment appealed from.

In this opinion Torrance and Fenn, Js., concurred.