Borough of Stamford v. Stamford Horse Railroad , 56 Conn. 381 ( 1888 )

Pardee, J.

The defendant company claiming that every street in the borough of Stamford, included within lines drawn from the northern terminus established by its charter to the eastern, thence to the southern, thence to the western, was subjected to its uses by the terms of its charter, began in 1887 to lay its track in Bedford street without previous permission by the plaintiff, and had completed the same to within fifty feet of the end of the street, when the work was stopped by the present injunction. It presses the same claim upon this court.

The defendant gave public notice in advance to the inhabitants of the borough as to the streets by name upon which it desired leave to impose its tracks; its petition repeated the list; and the legislature scrutinized it, and for reasons satisfactory to itself excluded one street asked for, added by name two not originally asked for, and granted leave to pass over certain streets by name. In view of this laborious effort to put precise limitations to this grant to a private corporation to take for its own profit without compensation something from the absolute right of the public to the use of highways, it is impossible to find in the words cited legislative permission or intent to subject without name to the use of the defendant, not only the streets for which it asked, and which the legislature excluded from the grant, but also practically every street in the borough unnamed.

The canons of interpretation require us to find in the last clause a meaning which puts it in accord with, in explanation and in furtherance of, the manifest intent to grant some streets by name and reserve all not named. That meaning is upon the surface. The words referred to are not necessary; the grant would be perfect in their absence. Like many words in charters, deeds, contracts and pleadings, they are inserted .from abundant caution; to protect the defendant from any assertion of claim that it had not the right to lay its track over or across any intersecting street. They add no street to the number of those specified by name.

The public have the absolute right to the fullest legal use of every part of the highway. The defendant, a private corporation, in the absence either of legislative or municipal permission, has no right to impose a permanent structure thereon and thereby sequester to its exclusive use for its exclusive profit any portion thereof.

The borough, as the instrumentality by which the governmental duty of constructing and maintaining highways is performed, as the guardian for the public of the highways dedicated to or purchased for its use, is entitled to an injunction against such an act by such a corporation for the sole reason that it is an unauthorized exclusion of the public from some portion of the way, and this regardless of the question as to the greater or less degree of inconvenience or danger or expense thence resulting to the public. Moreover, the borough is charged with the duty and clothed with the power to maintain the highways within its limits in a reasonable condition of safety for travelers. Upon it is the responsibility for failure to perform this duty. The finding is that every horse railroad track is of necessity “some impediment to the free and safe use of the street.for travel with carriages,” and that it may become a “serious and menacing obstacle to travel.” That is, it is certain to be dangerous in some degree, and may be greatly so. Inevitably there results to-the plaintiff increased liability to damages and increased expenditure in protection and repairs.

Upon the finding, as against the defendant, a trespasser, the plaintiff, both as it respects the portion of track already laid and the portion yet to be laid, is entitled to the presumption that the danger will be. in the highest degree. The defendant, leaving it in uncertainty, must rest under the burden of doubt. For these reasons too, the plaintiff is entitled to the writ.

And none the less so because of its right to remove the .track by force. As a rule injunctions are denied to those who have adequate remedy at law. Where the choice is between the ordinary and the extraordinary processes of law, and the former are' sufficient, the rule will not permit the use of the latter. In some cases of nuisance and in some cases of trespass the law permits an individual to abate'the one and prevent the other by force, because such permission is necessary to the complete protection of property and person. When the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the individual will consent to waive his right to the use of force and await its action. Therefore, as between force and the extraordinary writ of injunction, the rule will permit the latter. Certainly it should be no cause of complaint by the defendant that it is allowed peacefully to take up its track, with the attendant care and economy, rather than that the plaintiff should do it by force.

The defendant, without permission from either legislature or borough, without asking permission from either, and without notice to the latter, as a trespasser began to lay a track upon Bedford street. Immediately the plaintiff began to investigate the question as to its rights in the premises,, and upon receiving the advice of its attorney, instituted this proceeding. Laches is not found. We cannot find it as a fact, nor, upon the finding, impute it as a matter of law.

The Superior Court is advised to render judgment for the plaintiff.

In this opinion the other judges concurred.