Loomis v. Connecticut Railway & Lighting Co.

Supreme Court of Connecticut

Loomis v. Connecticut Railway & Lighting Co.

61 A. 539, 78 Conn. 156, 1905 Conn. LEXIS 61

Supreme Court of Connecticut·Decided July 14, 1905·Published·Cited by 8 cases

Opinion

*157 Hall, J.

On the 15th of October, 1902, the Connecticut Railway and Lighting Company, acting under § 3828 of the General Statutes, presented to the board of aldermen of the city of Derby a written application for the approval of a plan of construction of its street railway through Derby Avenue, Gilbert Street, and New Haven Avenue, in the city of Derby, accompanied by a map showing the proposed location of the tracks, which, after due notice and hearing, was on the 14th of November, 1902, approved, with the following modifications: “ Except that from a point commencing at the junction of Commerce Street with Derby Avenue, and continuing toward Derby through New Haven Avenue, Gilbert Street, and Derby Avenue to a point opposite the southwest corner of land of Dr. Frank N. Loomis, said tracks shall be laid in the center of said respective highways, and except that said layout from the southwest corner of land of Dr. Frank N. Loomis, northerly along Derby Avenue, to the intersection of the proposed tracks with the present tracks, is granted and approved along the easterly side of said avenue, as shown in said map, until such time as Derby Avenue . . . shall be defined, when said tracks shall be located along the westerly side of said highway.”

The map accompanying the application, changed to conform to said order, was filed with the city clerk, and no change of the location, as shown thereon, has since been ordered.

Rosa Morganstern, a party plaintiff in the first suit and one of the defendants in the second, on the 4th of September, 1903, acquired title by deed from the previous owner —the person named in said order of the board of aldermen, Frank N. Loomis—to premises used for tenements and stores, the building upon which, called the Loomis building, fronts westerly on Derby Avenue, formerly Front Street ;—which at this place runs in a northerly and southerly direction and along which said street railway has been constructed—and southerly on an open triangular space lying easterly of Derby Avenue and between said building *158 of Rosa Morganstern and the building known .as the Mansion House, owned by Robert H. Griffin, one of the defendants in the second case.

At the time of the commencement of these actions (the first complaint being dated July 26th and the second July 27th, 1908) Rosa Morganstern was in possession of the said Loomis building and premises, under an agreement by Loomis to convey them to her.

The Mansion House faces westerly on the triangular space above described, and southerly on Gilbert Street, along which the street railway has been laid, and was purchased by the defendant Griffin in December, 1900, from one Treat, the receiver of the Mansion House Company.

The New Haven and Derby Railroad Company has since 1870 been the owner of property on the west side of Derby Avenue and west of the Morganstern property and the Mansion House, and the northeastern boundary of the property of said New Haven and Derby Railroad was shown on the map presented by the street-railway company to the board of aldermen with its said application.

In the early summer of 1903 and before the commencement of these actions, said Morganstern erected an iron railing or fence along her claimed southern boundary line, and from the west end of said line, which was about twenty-nine feet from the southwest corner of the Loomis building, extended said railing northerly to the southwest corner of the verandah of the Loomis house. In laying its tracks the street-railway company removed a portion of said railing.

The defendant Griffin has threatened to remove the tracks of the railway company, and has cut down two of its trolley poles.

The first action is to restrain the street-railway company from maintaining its tracks as they have been located and laid at this place, and to recover damages, and the second is to restrain said persons from interfering with the construction and operation of the railway as so located. The two cases were tried together in the Superior Court and the two appeals argued together in this court;

*159 Loomis since the commencement of these suits, having conveyed to Mrs. Morganstern his interest in said Loomis premises, has been dropped as a party in both actions. As it appeared that Mrs. Morganstern did not intend to interfere with the construction and operation of the railway, the injunction in the second suit was against the defendant Griffin only.

The street-railway company’s layout at this place is a temporary one, and its tracks are to be moved to the westerly side of Derby Aveñue as soon as the city of Derby acquires the land of the New Haven and Derby Railroad Company for highway purposes, for which the city of Derby is negotiating.

The accompanying sketch represents a portion of the map presented by the street-railway company to the board of aider-men with said application, with the changed location of the tracks in accordance with the modifications ordered by the board of aldermen.

The principal claims made by Morganstern and Griffin upon the trial of these cases in the Superior Court were: first, that the railway company had located and laid its tracks outside of the limits of the highways and upon the private property of each of them; and second, that if the railway company’s tracks were located and laid within the limits of said highways, they were not placed in the middle of the same as required by the vote and order of the board of aldermen o£ November 14th, 1902.

Regarding the first of these claims, the trial court held that the railway company “ constructed its railway in said streets ”; that the railing erected by Morganstern, and removed by the railway company, was “situated in the highway, as herein found to exist”; and that “Griffin has no title to any of the property on which the railway company’s tracks are laid, or over which its cars are to be operated, or upon which its poles have been or are to be erected.”

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