Burritt v. City of New Haven

42 Conn. 174

Opinion

Phelps, J.

This action is brought against both the city of New Haven and the New Haven & Northampton Company, to recover damages for an injury to the plaintiff occasioned by the erection of a bridge at the railroad crossing over Prospect street in said city, and of an embankment or approach leading to the bridge ; and the question whether the plaintiff is entitled to recover against both or either of the defendants, and if against either, which, is reserved by the Superior-Court for the advice of this court.

By the provisions of its charter passed in 1846 the New Haven & Northampton Company in the construction of its. railroad was authorized to intersect and cross when necessary anyroad or highway, subject to the obligation to “restore-the same to its former state, or in a sufficient manner not to. impair its usefulness.” It was also required to “ construct and use that part of its railroad within the limits of the city of New Haven in such manner and subject to such rules and regulations as the common council of the city should, prescribe.”

The General Assembly in 1857 passed an act relative-to-the charter of said city, by the 38th section of which it was provided that the court of common council should have supervision over all bridges crossing railroads in said city, and, might from time to time order the widening and repairing of' the same in such manner and within such, times as in. their: judgment public convenience might require, and the manner of enforcing any order of the court of common council against any railroad company which refused to comply with such order as should be made, is specified. This act remained in force until it was superseded by a new charter which went into effect on the 1st of June, 1870, by the 33d section of which the 38th section of the former charter was re-enacted, with the addition that the power of the court of common council was extended to the building, as well as to the widening and repairing of such bridges.

On May 14th, 1869, the court of common council passed the following preamble and order:—“ It appearing to the court of common council of the city of New Haven that the public necessity and convenience require that Prospect street should be crossed by a bridge over that part used and occupied by the New Haven & Northampton Company, it is therefore hereby ordered that the said New Haven & Northampton •Company restore said Prospect street to a safe and convenient condition for the public use, by making and maintaining a ■suitable bridge with sufficient sidewalks on each side of the roadway of said bridge over the track and road-bed of said railroad company in said street, within the period of six months from the date hereof, to the acceptance of the hoard of road 'Commissioners.”

The railroad company refused to comply with that order, and on the 7tli day of May, 1870, the court of common council by resolution authorized and directed the board of road commissioners to contract with the railroad company to construct a bridge at its own exclusive expense, the city to assume the grading of the street up to the bridge on either side.

In pursuance of that resolution, the railroad company on the 14th day of July, 1870, by its vice-president, and the board of road commissioners by its chairman, executed such .■a contract, and the parties respectively performed the portion of the work stipulated for by each. The bridge and abutments were erected by the railroad company, no part of which was placed on any portion-of the plaintiff’s land, and the embank ments or approaches were constructed under the direction of the city and were in part on land in said street owned in foe by the plaintiff subject to the public easement.

The plaintiff’s lot was immediately contiguous to said street and-crossing, and her dwelling house was erected in 18G6 in conformity to the existing grade; but by the erection of said embankment the first floor of her' house, which was four feet above the former grade of the street, became eleven feet below the new grade, by means of' which her basement was often flooded with water and she was subjected to great annoyance and injury.

The court of common council passed an order on the 11th of January, 1873, directing the board of compensation organized under section 27th of the city charter, to assess and determine all damages and benefits accruing to all parties interested, by the “ filling in of the approaches to said bridge.” The board estimated and assessed the plaintiff’s damages, above the benefits received by her, at. $2,000, and its report and assessment were confirmed and accepted by both branches of the common council, and an order was passed making the assessment in conformity thereto, but the mayor returned the order with his disapproval and the vote adopting it was therefore reconsidered and the order was rejected by the common council.

This court in construing a provision in the charter of another railroad corporation, precisely similar to the one in question here, decided in a case involving substantially the same facts, that such an injury as the one complained of did not constitute a taking of the land of the plaintiff within the meaning of the constitution of this state or of the charter of the defendant, but that the injury was of such a character as was contemplated by the legislature and provided for in the defendant’s charter, and that under the clause requiring “ payment of all damages that may arise to any person or persons,” the plaintiff was entitled to recover for the consequential injury which he sustained. Bradley v. N. York & N. Haven R. R. Co., 21 Conn., 294. In our judgment this authority is entirely decisive of the right of the plaintiff to recover against some one, and we think there is upon principle no serious difficulty in determining where the liability legally belongs. The immediate cause of the injury to the plaintiff was the erection of a high embankment which constituted one of the approaches to the bridge, and which was constructed immediately in front of her dwelling. It might appear on first impression that the city, by whose apparent authority this part of the work was done, was at least primarily liable for the damage which was thus occasioned to the plaintiff, but when we carefully consider the provisions of the charters of both defendants, and the duties and liabilities of the city under the law, we find as we think insurmountable obstacles in the way of sustaining the claim against this defendant. The only duty resting upon municipal corporations with respect to highways and bridges within their corporate limits is imposed by the legislature and is limited to the making and maintaining them in a condition safe and convenient for the public use. When this duty is reasonably discharged the legal obligation is fully satisfied. But the city was not then engaged in the performance of that duty. The structure ordered was not required to discharge any obligation properly resting on the city. It had fully performed its duty with respect to Prospect street before the passing by the common council of the order which underlies all the subsequent proceedings. The necessity wholly originated in the exercise by the railroad company of its corporate authority to lay its rails and run its trains through the city, and to intersect and cross its public streets, which authority it exercised on the expressed condition that it should use its franchise within the city limits under the rules and regulations of the common council, and should restore the streets so crossed by it to their former usefulness. This was the consideration and price it agreed by the acceptance of its charter to pay for that valuable privilege, and the occasion for a change at the crossing of that street arose solely from the acts of the railroad company thus done under its charter, and from no act or omission by the city.

But independently of those considerations, the city cannot in our judgment be lield liable. All the legal obligations which devolve upon it with respect to this subject have their origin in the highest legislative authority, and are connected with duties of a public and governmental character only, and from liability for the reasonable performance of those duties the municipality enjoys complete legal immunity. Judge v. City of Meriden, 38 Conn., 90.

It may perhaps be suggested that the city, notwithstanding the legal obligation which rested on the railroad company to construct and maintain the bridge and approaches, had by the action of its common council in authorizing and directing its board of road commissioners to make the contract which was entered into by them and the railroad company, and in constructing the approaches, assumed a liability which it can not now deny. We consider it a sufficient answer to such a claim, that by the law, and also by the voluntary act of the railroad company, the liability attached to the company and the city was absolved from it; and the common council without authority expressly conferred upon it by the city, if indeed even with it, had no power to bind the city by such a contract as they authorized to be made. Where there is no duty devolving on such a corporation none can be legally assumed. The acts done under such an assumption were, as to the city, ultra vires, and without consideration, and must be considered as having been done by the agents of the railroad company. Abendroth v. Town of Greenwich, 29 Conn., 356 ; Gardner v. Boston & Worcester R. R. Co., 9 Cush., 1.

With respect to the other defendant the case is entirely different. We have already noticed that by virtue of its charter its right to cross Prospect street was subject to the obligation to restore it to its former usefulness. The reasonable meaning of this requirement is that it should make the street safe and convenient for the public. When the railroad was constructed that street was located on the margin of the city proper and was then a comparatively unimportant way. Crossing it at a grade with locomotives and trains of cars was not considered dangerous to persons traveling on it, and its usefulness was not thereby so impaired that the public convenience then required a different or safer mode of crossing. But in the quarter of a century which has intervened between the building of the railroad and the passing of the order for the erection of the bridge, the growth and extension of the city have been steady and uninterrupted, and Prospect street had thereby become such an important avenue that it was no longer safe to permit railroad trains ■ to cross it on a level with the surface of the street.

It is urged with some plausibility that the charter of the railroad company by fair construction only required it to restore a street crossed by it to its former usefulness by repairing at the time the crossing was first made any defect or danger then produced by it, and not to remedy any defect or guard against any danger which should have afterward arisen in consequence of the enlargement of the city and the increased travel upon its streets. In a case against the same railroad company, (English v. N. Haven & Northampton Co., 82 Conn., 241,) the contrary principle was established in its application to circumstances which in sound reasoning cannot well be distinguished from those existing in this case. There a bridge over a railroad crossing of this company in the city of New Haven was constructed of suitable capacity to accommodate the public when the railroad was first built, but by the increase of travel incident to the growth of the city the public convenience afterwards required a material enlargement of the bridge, and it was held that the obligation of the company was a continuing one and commensurate with the increasing necessity of the public. The original duty was fully discharged, but a new and additional one was created by a change of circumstances, and its performance was required, not because it would be beneficial to the company to perform it, but because the convenience, necessity and safety of the public demanded it. The charter of the company is an open one, subject to amendment and repeal, and it was field that it was rightfully amended by a subsequent act of the General Assembly relative to the charter of the city of New Haven herein before recited, by which the common council was given supervision over all bridges crossing railroads within the city, • and the power of ordering the widening and repairing of the same. Both the occasion and the reason for that determination are so strictly analogous in principle to those in the case under consideration, that we are able to discover no propriety in subjecting the company in one case, and exempting it in the other.

By another provision already referred to of the charter of this railroad company, it was only authorized to use that part of its railroad within the limits of the city in such a manner and subject to such rules and regulations as the common council of the city should prescribe. We think there was a continuing duty on the railroad company to comply with such reasonable rules and regulations of the common council as they should at any time in the varying exigences of the public safety make, and especially with such as required it to restore to its former usefulness a public street which, in consequence of its having crossed it, had after a lapse of time become incommodious and unsafe, and which under the provisions of its own charter it was bound to restore.

The privilege of crossing the streets of the city is a part of the franchise of the company, and the necessary approaches constructed for the purpose of restoring city streets to their former usefulness under and as a condition to the exercise of the privilege, are a part of the railroad structure authorized by its charter, and in their erection a party incidentally injured has as perfect a remedy against the company for consequential damages, as for a direct injury by it in the original construction of its railroad. The obligation to make compensation is as strong in one case as in the. other, and to the discharge, of that obligation in the manner prescribed it impliedly bound itself by its acceptance of its charter. Parker v. Boston & Maine R. R. Co., 3 Cushing, 116; Bradley v. N. York & N. Haven R. R. Co., 21 Conn., 310.

It is insisted that this case is essentially different from the one last cited, because here the bridge is found to have been required by public convenience and necessity only, while there it was for the sole benefit and accommodation of the railroad company. We do not see that this distinction affects tlie obligation of the company in this particular. If public convenience and necessity, by the growth of the city and the resulting increase of travel, require the change in order to restore the street to its former usefulness, the duty of the company under its charter, which was before inchoate, is complete, and the same responsibility adheres to it as if the work was demanded for its corporate benefit alone; and to the responsibility in the performance of the work are attached all the legal consequences which flow from the improper and injurious performance of it. The fact that the duty is by law imposed upon the company is sufficient to charge it with all the consequences of such an execution of it as results in injury to others.

It may perhaps be said that the order of the common council to the railroad company extended only to the abutments and bridge proper, and did not embrace the approaches. It is true the literal phraseology of the order is confined to the bridge alone. No other part of the structure is specified, but the common council must be presumed to have acted intelligently and to have intended the object which was sought to be accomplished. The building of the bridge was necessary to give the public a safe and convenient passage over the defendant’s track, and the filling in of the approaches was required in consequence of the erection of the bridge in order to restore the street to its former usefulness, which it was made the duty of the defendant to do. A bridge which was to be many feet above the grade of the street and crossing, and when consequently a high embankment for approaches was absolutely necessary, would be useless without such a material portion of the structure, and it must necessarily have been contemplated as a part of the bridge. When the order was made, it is clear the common council were endeavoring to compel the railroad company to do what was required to restore the street to a safe condition, and both the bridge and approaches were needed for that purpose. We think the case is in this particular readily distinguished from that of the City of New Haven v. The N. York & N. Haven R. R. Co., 89 Conn., 128. The question in that case was whether the railroad company was obliged to keep in repair the pavements and sidewalks in a street which at the point in controversy was an approach to a bridge over the defendant’s track, which bridge and approach the defendant had previously built in pursuance of its charter. The court held that the company was not liable under the 33d section of the city charter herein before recited, to make the ordinary repairs upon the pavements. When the railroad company built its road it restored the streets crossed by it to their former usefulness by the construction of both bridges and approaches, and had therefore done all that it is contended by the plaintiff that the New Haven & Northampton Company should have done in this case, and the court, in construing that section of the city charter, which in its language is strictly limited to the “ building, widening and repairing of bridges crossing railroads in said city,” decided that the word “ bridges ” as there used was restricted to the bridge proper, to the exclusion of embankments, filling and approaches, unless the immediate approaches should be considered a part of the bridge structure. The court admit that the word may in certain connections be so used as to include the adjoining embankments and approaches, and say that “ the true reason for requiring railroad companies to build and maintain bridges and their approaches is that the construction and operation of their railroads make such structures necessary when otherwise they would not be needed. They should therefore on principles of natural justice be built and maintained by railroad companies. All such repairs as from time to time become necessary to the structures as such, should be at the expense of the railroad companies. But the repairs of highways upon and over the approaches to a bridge, if the necessity for the repaii’S in no way arises from the existence or operation of the road, and if they are such as would be needed independently of the existence of the road, justly remain a charge upon the town or city.” Id., p. 132. In the present case the construction and operation of the railroad made the bridge and approaches necessary when they would not have been otherwise required, and the work was not needed to be done independently of the existence of the railroad, but altogether on account of its existence. The reasoning of the court was satisfactory upon the question before it, and is equally pertinent and convincing in favor of such a construction as in this case would include, within the meaning of the word bridge, the necessary embankments and approaches.

It is farther intimated that on the 14th day of April, 1869, the city of New Haven had no power to impose on the New Haven & Northampton Company the burden of raising the highway and constructing the bridge in front of the plaintiff’s premises, because, by the provisions of the city charter then in force, the authority of the court of common council did not extend to the construction, but only to the widening and repairing of bridges over railroads at street crossings within the city limits. We regard this, if true, as not vitally important, for the reason that we do not consider the liability of the railroad company to depend entirely, or mainly, on the provisions.of the city charter, but on those of the charter of the company itself, which require it to restore highways crossed by it to their former condition of usefulness, and to construct and use that part of its railroad within the corporate limits of the city in such a manner and subject to such-rules and regulations as the common council of the city should prescribe. Having accepted its charter with those qualifications, it gave to them an important and controlling influence on its duty with respect to the construction of the bridge and its necessary appendages, and on its liability for injury done in such construction.

The charters of corporations which confer exclusive privileges for the particular advantage of the grantees, are to be construed liberally for the benefit of the public, and strictly as against the corporations, and we have not exceeded this just principle of interpretation in our construction of this defendant’s charter.

We advise the Superior Court to render judgment in favor of the city of New Haven, and against the New Haven & Northampton Company for 12,000 damages, as pro forrnfl found by the Superior Court.

In this opinion Park, C. J., and Carpenter and Foster, Js., concurred.

Pardee, J., dissented, being of opinion that the New Haven & Northampton Company did not, either directly or indirectly, do the act complained of, but that it was done by the city of New Haven, and in the discharge of a governmental duty imposed upon it; and that judgment should therefore have been rendered in favor of both the defendants.