(dissenting). In this case I feel obliged to dissent from the conclusion reached by a majority of the court, that the plaintiff is entitled to an injunction. The locus in quo is a small piece of land near the westerly end of what is called the “causeway” leading to “Tomlinson’s Bridge,” so-called, and lies wholly within the limits of said, causeway. It is now crossed by certain tracks of the plaintiff and by the double tracks of the defendant’s electric street railway. The plaintiff asks for an injunction to restrain the defendant from operating its street railroad over the locus, and an order requiring it to remove its tracks therefrom. The defense is, that the locus is a public highway and is occupied by the defendant under the authority of the legislature. With reference to this defense the majority opinion says this: “ The plaintiff (assuming its land to be covered by a public highway) is not entitled to injunction or compensation for the mere occupation of that land by the tracks of the defendant. There must be some peculiar and special damage done to the property of the plaintiff. It is doubtful, at least, whether such special damage is sufficiently alleged *630in the complaint, although it is found in the agreed statement of facts. If, therefore, the defense were clearly supported by the facts found, we might properly deny the injunction; leaving the plaintiff to its legal remedy for such special damage as it may have sustained. But this defense is not clearly supported.”
The defense, as before stated, was (1) that the locus was a public highway; (2) that it was occupied by the defendant for a street railway by legislative authority. Upon the facts found it is clear, and is not disputed, that this second part of the defense is true. The defendant’s tracks were laid there and it operates its road there, by legislative authority. The only question then is whether the first part of the defense—-that the locus is a public highway—is supported by the facts agreed upon. If it is, the majority opinion concedes that the injunction ought not to issue.
The main facts bearing upon this point are these: The Bridge Company was incorporated in 1796 to build and maintain a bridge across New Haven harbor to East Haven. In 1799 it built and completed a bridge, and a causeway leading to it, from the present junction of Bridge and Water streets in New Haven. The causeway was about fifty feet wide and about twelve hundred feet long. When this was done the Bridge Company erected a toll-gate at the westerly end of the causeway, and took toll there. In 1822 the Bridge Company removed the toll-gate to a point near the westerly end of the bridge, where it remained until the bridge was made a free bridge, in 1886. Prior to 1840 the Bridge Company obtained title to the flats in the vicinity of the bridge, filled them up and reclaimed the land, and built public docks or wharves there and otherwise used the reclaimed land as its own. In 1840 the plaintiff acquired the right from the Bridge Company, to use such property of the Bridge Company in the vicinity of the causeway as it might require for railroad purposes, and in connection with its use, of the docks there. Under the rights thus acquired the plaintiff, in 1841, laid its tracks across the westerly end of the causeway substantially where they now run. In 1865 the defend*631ant attempted to lay its tracks for a horse railroad upon the causeway, crossing the tracks of the plaintiff, and was stopped from so doing by an injunction procured by the Bridge Company. Thereupon the Bridge Company, with the consent of the plaintiff, granted to the defendant a written license to lay its tracks there, under which license, accepted by the defendant, it laid and operated its horse railroad until said license was revoked by the Bridge Company in 1893.
Upon the facts found, I do not think this license has any bearing upon the question whether the causeway was or was not a public highway, and it may therefore be laid out of the case.
In 1868 the plaintiff brought proceedings to condemn and did condemn and take two certain described pieces of the Bridge Company’s property in the vicinity of the causeway. One of these pieces, the smaller one, is the only one we are here concerned with, as it includes the locus in quo. This piece is known in the record as parcel B. The precise locus in quo is a small part of parcel B near the westerly end of the causeway, and lying wholly within the limits of the causeway, substantially covered by the crossing tracks of the plaintiff. Parcel B was taken by the plaintiff under its condemnation proceedings, “ subject to such rights of passage over the same as now exist by law.” This is the language used by the plaintiff, and it is clearly broad enough to include a public highway, if one then existed over parcel B. Subsequently in the same year (1868) the Bridge Company conveyed to the plaintiff by deed whatever residuum of rights it had, if any, in parcel B, which had not been taken by the condemnation proceedings.
So far as the persent question is concerned, I think this deed conveyed nothing to the plaintiff. It had already acquired whatever rights the Bridge Company had in parcel B. It is under the condemnation proceedings and this deed that the plaintiff claims to be the owner in fee of the locus in quo, free from the servitude of a highway, at least so far as the defendant is concerned. In 1886 the Bridge *632Company, under the authority of the legislature, conveyed to the city and town of New Haven all its right, title and interest in and to the bridge and causeway, “ as and for a public highway, free to the use of all the public as all other highways of said city and town now are.” It thus appears that from 1799 down to 1898 the entire causeway and bridge formed part of a public highway; not a free public highway, it is true, because toll was exacted if you crossed the bridge, until 1886, but still a public highway. The Bridge Company could neither close it nor dispose of it without legislative authority. It is conceded that all the rest of the causeway east and west of the locus in quo is now a free public highway, for all purposes. The plaintiff admits, for the purposes of this case at least, that the locus in quo is a public highway for all purposes and uses except the purposes and uses of a street railway. How did the causeway become a public highway? Not by the deed of the Bridge Company to the city and town in 1886 ; that only made it a free road. It has been a public highway since 1799 by virtue of its layout and maintainance by the Bridge Company as the agent of the legislature, and it has been a free public highway since 1886.
The claim of the plaintiff is that a small part of the causeway is not a highway for the purposes and uses of a street railway, while all the rest of it is a highway for all purposes and uses. I am unable to see any reason for making a distinction in this respect between the locus in quo as part of the causeway, and any other part of the causeway. If the one is a public highway the other is also. Upon the agreed facts, then, I think that the entire causeway in 1868 was subject to the servitude of a public highway, and that the plaintiff took the locus in quo and holds it subject to that servitude. For tins reason I think the defense put forward is fully supported by the agreed facts; and if this be so the majority opinion concedes that no injunction should issue, even if the plaintiff is entitled to damages for the acts of the defendant.
But I dissent entirely from the further conclusion reached *633in that opinion, that upon the agreed facts the plaintiff’s rights have been so invaded by the acts of the defendant as to entitle it to damages under the principles laid down in the case of Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146. In laying its track over the locus and in operating its railroad there, it is conceded that the defendant has fully complied with all the requirements of the law. The majority opinion concedes that “there is nothing in the record to distinguish the defendant’s road from the harmless street railroad contemplated in the Canastota Knife Co. case, unless it be its injurious effect on the property of landowners,” meaning, I suppose, the plaintiff. That opinion further concedes that the plaintiff is not entitled to compensation for the mere occupation of its land by the tracks of the defendant; that there must be “ some peculiar and special damage done to the property of the plaintiff ” to entitle it to damages; and that it is doubtful whether such special damage is sufficiently alleged in the complaint. It states, however, that the agreed facts show such special and peculiar damage resulting to the plaintiff here. I cannot assent to this.
The agreed facts show that the tracks of the plaintiff over the locus in quo are not its main line tracks. They lead to its freight yard and freight depots, and are used mainly for freighting and switching purposes. In the agreed statement of facts, the “ peculiar and special damage done to the property of the plaintiff ” is set forth in paragraphs 21-26 and 29. These statements amount to this, in substance: Owing to the growth of the city, the use of tins crossing by the general public and by the defendant has greatly increased of late years and will continue to increase; and owing to the increase of the plaintiff’s business, its use of this crossing and of its freight yards and depots adjoining has greatly increased and will continue to increase. This use of the crossing by the general public and by the defendant seriously interrupts, delays and obstructs the plaintiff’s business here, and interferes with the proper use of its property, and the proper, safe and economical operation of its road. It makes *634this a very dangerous grade crossing. It imposes expense upon the plaintiff “ in providing watchmen, gatemen, tram-hands, and safeguards to reduce as far as possible the danger and damage to the public and to itself.”
These, in brief, are the facts agreed to upon this point, so far as they concern the damage to the plaintiff. These facts do not show any peculiar and special damage done to the property of the plaintiff by the defendant, within the meaning of the principles laid down in the Canastota Knife Co. case. They show the existence of a very dangerous grade crossing here; dangerous to the plaintiff, to the defendant and to the general public. The plaintiff is undoubtedly hindered and delayed in its business and put to expense by reason of the existence of such a crossing; but that delay and expense is caused not by the defendant, specially or primarily, but by the fact that the plaintiff’s tracks are laid across a public highway, the use of which by the general public becomes greater every year. I agree that this grade crossing should be abolished as soon as possible, but the fact that it exists is no reason why, upon the agreed facts, the defendant should be enjoined from operating its street railway there.
In this opinion Prentice, J., concurred.
Application for leave to file a motion for reargument was made July 23d and denied July 26th, 1898.