Much of the discussion in the preceding cases is applicable here.
The function of the motion to erase, the interpretation to be given the word "aggrieved" in § 3834 of the General Statutes, the scope of an appeal under said section, and the allegations sufficient in such an appeal to withstand a motion to erase, need not be repeated, nor need we restate the doctrine that the illegal exercise by the railroad commissioners of their powers, or of their right of regulation, over street railways, will justify judicial interference.
These proceedings disclose no action of the directors of the Railway Company approving a plan of location. Until such action, any approval by the railroad commissioners of the plan and method of construction was unauthorized in law. New York, N. H. H.R. Co. v. Stevens, 81 Conn. 16, 18, 69 A. 1052.
One ground of appeal is the action of the commissioners in dismissing the petition or protest of the appellants, in which they set forth their objection to the consideration or approval of the petition of the Railway Company praying that the commissioners "approve the layout of the railway on private land and the method of construction herein set forth," because the plan of the railway location shows that the Company proposes to lay its tracks across the land owned by the appellants on York Street in said borough, although no notice of said petition had been given appellants and they had not agreed to allow said Company to take said land.
Since the motion to erase admits the facts well pleaded, the case is one where the Railway Company seeks to secure the approval of the commissioners of its plan of layout on private land, and its method of construction, *Page 45 without having given one of the owners of such land notice of its petition, and without having secured the right to take such land.
The appearance of the appellants, the filing of their petition and protest, and hearing thereon, was a waiver of their right to subsequently object to the failure to give them notice.
York Street is not among the highways specifically named in the route designated in the charter of the Railway Company. There is nothing in any part of these proceedings which tends to even suggest that that part of York Street over which the said Railway Company proposes to locate, and which the appellants allege they own, is a public highway. So far as the record stands the appellants' rights to York Street are the same as to their own dooryard. Its Act of incorporation (14 Special Laws, p. 720, § 3) gave the Shore Line Electric Railway Company the right to "take for railroad purposes as much real estate lying outside any highway as may be necessary for the proper construction and operation of its road within the limits of the route hereinbefore mentioned, and may condemn land, where necessary, in the same manner provided in the General Statutes relating to the taking of land by railroad companies operated by steam."
Until it secures, by agreement with the appellants, or by the exercise of its power to condemn, the right to locate over the appellants' said land, it has no right to have its petition entertained or approved.
If York Street were a public highway, irrespective of the question of the right of the owner of the fee in the highway to compensation preceding the location and operation of the railway over such highway, the appellants were entitled to have their case remain in court.
Either as owners of the fee, or as adjoining owners, these appellants could recover damages if the location *Page 46 or method of construction of this railway did them special and peculiar damage. Canastota Knife Co. v.Newington Tramway Co., 69 Conn. 146, 159,36 A. 1107; New York, N. H. H.R. Co. v. Fair Haven W.R. Co., 70 Conn. 610, 615, 40 A. 607, 41 id. 169. In an appropriate case they might even invoke the aid of a court of equity to prevent special damage to their property.
The commissioners must determine the method and manner of construction in such way as to protect the rights of the general public, so far as is consistent with the execution of the franchise granted the Railway Company in a reasonably practical way, and at the same time do no greater injury to the owner of the fee of the highway or the adjoining owner than follows its due exercise.
Every owner of the fee of the highway over which a railway company proposes to locate, and every adjoining owner, is entitled, as of right, to the opportunity to show before the commissioners, and the court on appeal, that a method of location or construction will cause him special damage.
The terms of the appeal to the Superior Court enable the appellants to establish, as one of their grievances, any special injury or damage done them by the order appealed from.
Whether the commissioners have exercised their powers of regulation in a way so as to do no greater injury to the owners of the fee in the highway, or the adjoining owners on the highway, than the performance of their duties require, or whether the construction approved of may do the appellants special injury, are essentially judicial questions. Waterbury'sAppeal, 78 Conn. 222, 226, 61 A. 547; New York,N. H. H.R. Co.'s Appeal, 80 Conn. 623, 641,70 A. 26. *Page 47
There is error, the judgment is reversed and the cause remanded with instructions to overrule the motion to erase.
In this opinion the other judges concurred.