New Haven Steam Saw Mill Co. v. City of New Haven & New York, New Haven & Hartford Railroad , 72 Conn. 276 ( 1899 )

The record in these cases shows that the city of New Haven changed the grade of Chapel street, a much frequented highway in that city. The report of the committee finds that each of the plaintiffs was damaged by that change of the grade of said street to a very substantial amount; and each of the plaintiffs seeks to recover his own damage. The defendants say that whatever they or either of them did in or about the changing of the grade in the said street, they did pursuant to and by reason of the order made by the railroad commissioners of the State, modified, approved and affirmed by the Superior Court, directing them to make such change of grade, and coerced thereto by a writ of peremptory mandamus lawfully issued and duly served upon them; that in whatever they did in the matter they acted in obedience to the command of the sovereign power of the State in the performance of a police duty, and that they are not liable to the plaintiffs for any damages which the plaintiffs may have suffered by reason of their performance of the duty so commanded. The plaintiffs, in reply to this claim of the defendants, say: first, that the defendants did not act in pursuance to the order of the railroad commissioners, but proceeded of their own motion, and therefore are liable for the damages they have caused; and second, that even if they did act pursuant to the order of the commissioners, they are equally liable for the damages, — made so by the laws of the State.

It is upon the correctness of these claims that the right of the plaintiffs to recover, depends. Moreover, these claims embrace the substance of all the questions made by the remonstrance to the committee's report.

In that series of events which resulted in the change of the grade in Chapel street, the initial step was the proceeding by the railroad commissioners. To that proceeding all persons supposed to be interested were made parties by the notice given by the commissioners. From that proceeding issued the order that the change in the grade of Chapel street should be made, directing the city and the railroad company to do the work and apportioning the payments to be made. Then followed the judgment of the Superior Court, and later the peremptory mandamus. Both these last-named proceedings were based upon the order made by the commissioners, and commanded the performance by the defendants of the work therein ordered by the commissioners to be done. In the light of these successive orders, decrees and commands, it is impossible to come to any other conclusion than that "the change of grade, construction of bridge, and building of retaining walls, described in the complaint, were all made and done under and in pursuance of the said order of the railroad commissioners." That the work was not done within two years after the order was made, and that the bridge is a trifle wider than the layout of the street, were immaterial variances which should have been disregarded.

The order here in question was one designed to remove a dangerous grade-crossing in Chapel street in the city of New Haven. Every grade-crossing is a menace to human life. The legislature, in enacting those statutes which empower the railroad commissioners to order the removal of such crossings, and the commissioners in making such orders, are exercising the police powers of the State for the preservation of life. The extinction of grade-crossings, when ordered by the legislature, is within the police powers of the State. Westbrook'sAppeal, 57 Conn. 95, 104. An order made pursuant to such legislation is an exercise of the police powers. The defendants say that because they acted pursuant to an order of the State in the exercise of its police powers to abate a nuisance, they are not liable in damages to the plaintiffs for any injury that, in consequence of their act, may have been done to the plaintiffs' property. They say that if property is injured or destroyed by the State, or the agents of the State, in the lawful execution of a police regulation, the owner cannot recover for such damage; that it is damnum absque injuria. As a general statement we suppose this to be correct. It is very likely that there is no common-law liability upon the defendants to pay damages to the plaintiffs.

But the legislature may and often does authorize or even direct acts to be done which are harmful to individuals, which, without such authority, would render the persons doing the acts liable to pay damages. If, however, in such cases the statute authorizing or directing the act to be done is one which the legislature has the power to pass, the acts are lawful, and the party doing them is not liable in damages unless the power has been exceeded. But in such statutes there may also be given to those who suffer consequential damages the right to recover therefor; and when so given, the right to recover compensation is a creature of statute; and the injured person may recover accordingly. TransportationCo. v. Chicago, 99 U.S. 635, 640; Rowe v. Granite BridgeCo., 21 Pick. 344; Darlington v. Mayor, 31 N.Y. 164; AlleghenyCo. v. Gibson, 90 Pa. 397. The legislature, having the power to order the act to be done, may provide compensation for the property injured by the doing of the act, in such mode and to such extent as it deems wise. Instances of such legislation are very numerous. The Acts of 1875 and 1880 authorizing the board of agriculture or its commissioners to cause animals supposed to be infected by some contagious disease to be killed, and providing compensation to the owner of such animals, are statutes of this kind. See also General Statutes, Rev. of 1875, pp. 18 and 19; Public Acts of 1880, Chap. 73; id. 1885, Chap. 106; id. 1887, Chap. 70. And in all cases where compensation is so provided, the party doing the act which causes the damages must have the damages ascertained and pay them; otherwise the party injured may bring an action therefor. Holley v. Torrington, 63 Conn. 426;Cullen v. New York, N. H. H.R. Co., 66 id. 211, 226.

Chapter 100 of the Public Acts of 1884 is also a statute of the same kind. It is as follows: "The railroad commissioners may, when in their opinion public safety requires an alteration of any highway crossed at grade by a railroad, after a hearing had upon such notice as they shall deem reasonable to the railroad company owning or operating said railroad, and to the selectmen of the town, mayor of the city, or warden of the borough within which said highway is situated, and to the owners of the land adjoining said crossing, order such alterations in such highway as they shall deem best, and shall determine and direct by whom such alterations shall be made, at whose expense, and within what time." This Act was an amendment of a similar Act passed the previous year. See Public Acts of 1883, Chap. 107, § 3. And the latter statute was an extension of an Act passed in 1876, Chap. 36. See also the General Statutes of 1875, p. 232.

This was the statute in force when the order made by the railroad commissioners in this case went into effect. Acting upon the authority so given them, and, as appears from their recital, upon their own opinion that the public safety required it, the railroad commissioners made the order in the present case. They ordered the grade-crossing in Chapel street to be changed, and that in the changing of such crossing the street be raised sixteen feet for some distance in front of the land of the plaintiffs. They also ordered that all of the said alterations should be made and completed within two years from the date of the order, and that the expense thereof, "including the land damages if any incident to said alterations," should be at the "joint expense of the said city and railroad company." A part of the land damages "incident to said alterations" was the damage done to the present plaintiffs by raising the grade of the highway to which their lands were adjacent. This was a damage which the city was by law bound to pay to them. General Statutes, Rev. of 1875, p. 236; Public Acts of 1882, Chap. 73. The order of the railroad commissioners provides for the payment of these damages, and at whose expense. The defendants are therefore under a statutory liability to pay to the plaintiffs their damages; the amount to be apportioned between the defendants as is specified in the order of the railroad commissioners.

The city of New Haven, recognizing its liability under the said order of the railroad commissioners, after the work was completed directed the bureau of compensation to assess to all parties interested the benefits and the damages to accrue by the change of grade in Chapel street. That board acted in the premises and made its report, finding the damages and benefits to each of the plaintiffs to be equal. The present complaints are each an appeal from that assessment. The committee of the Superior Court has found that the damages to the plaintiffs largely exceed the benefits to them. We think the defendants are by the statute made liable to pay the amount of the damages so ascertained.

The Superior Court is advised to accept the reports of its committee and to render judgment in favor of the New Haven Steam Saw Mill Company for the sum of $22,762.84, and in favor of John S. Cannon, executor, for the sum of $12,444.95.

The costs in this court will be taxed in favor of the respective plaintiffs.

In this opinion the other judges concurred.