State v. Suffield & Thompsonville Bridge Co. ( 1908 )

The Superior Court adjudged that the State take the bridge of the defendant, with its approaches and its appurtenances, to be the property of the State for the public use of a free public highway, as provided in the Act of 1907 for the establishment of free public highways across the Connecticut River and the Niantic River (Public Acts of 1907, p. 871, Chap. 258), and appointed a committee to assess such sum in favor of the defendant owner of said property as will justly compensate it therefor in pursuance of the provisions of said Act. The direction in the order for assessing just compensation purports to follow the Act, and we must hold that such is its legal effect. The Attorney-General claims that the Act and the order of court in pursuance of the Act directs the committee, in ascertaining the sum which will justly compensate the owners of the property taken, to consider only the value of the bridge, its approaches, etc., and the damage accruing to any other property of the defendant, and to exclude from consideration the value of the defendant's franchise and the sums paid by the defendant, in pursuance of the requirements of its charter, for the purpose of enabling the State to lawfully establish any bridge highway at that place. The defendant claims that the Act of 1907 and the order of court in pursuance thereof directs the committee, in assessing just compensation, to include in the sum assessed such sums as may have been paid by the defendant for said purpose as required by its charter. We think this claim of the defendant is correct.

A franchise is property, and, like other property, may be taken for public use. Enfield Toll Bridge Co. v. Hartford N. H.R. Co., 17 Conn. 40,59. A toll-bridge highway, as well as a turnpike road, is a public highway established by public authority, and to be regarded as a public easement; and persons who have been paid damages for property taken in its construction are entitled to no additional damage when it is made by public authority a free highway. State v. Maine, 27 Conn. 641, 648, 649. When the defendant, under authority and requirement of its charter, paid the Enfield Bridge Company and the proprietors of the Thompsonville Ferry damage for injury to their property taken for the establishment of the bridge highway, the rights so acquired inured to the benefit of the public. In granting the defendant's charter the State stipulated, and in accepting the charter the defendant agreed, that when the State (as at any time it lawfully might) should authorize the taking of the defendant's property acquired in pursuance of its charter for the public use of a free public highway, upon paying just compensation for the property so taken, that such compensation should be ascertained by appraising the value of the bridge and appurtenant property and such amounts as have been paid as damages to the owner of the ferry and the Enfield Bridge Company and other damages the defendant shall suffer, but not including damages for the defendant's franchise created by its charter. 10 Special Laws, p. 1208. This stipulation and agreement determines the elements to be considered in ascertaining "just compensation," whenever the State may authorize the taking of the defendant's property for a free public highway; and it is immaterial whether the State acts directly in taking the property, or intrusts some public agencies with powers to that effect, such as the towns of Enfield and Suffield.

We think the Act of 1907 recognizes these provisions of the charter, and provides for their observance. That Act applies to four distinct toll-bridges, owned by four distinct corporations. It provides one process and one mode of condemnation for all. It provides that the committee appointed in the proceeding against each corporation shall assess just compensation by ascertaining the value of the property proposed to be taken, including the value of the franchise and the damage accruing to any other property of the corporation except that, in the case of the Suffield and Thompsonville Bridge Company, no damage shall be assessed for its franchise "as provided in the charter of said corporation." There is no such provision in its charter except the one we have already considered, by which the defendant agrees to forego its right to compensation for taking its franchise in consideration of its being awarded as damages the amounts it shall have paid to the owner of the ferry and the Enfield Bridge Company. No other meaning can be given the language used in the Act without eliminating the controlling words, "as provided in the charter of said corporation." We think this meaning is too plainly indicated by the language used to require any consideration of the further argument urged in its support, namely, that the different construction claimed by the Attorney-General would render the provision invalid. It follows that the committee acted improperly in rejecting evidence of the defendant's payment to the Enfield Bridge Company and to the owners of the Thompsonville Ferry. Evidence of the agreement and deed for conveyance of the ferry rights to the defendant was admissible as tending to show a payment of damages to the ferry owner, but for no other purpose. The rulings of the committee upon conflicting claims of law call for no separate consideration, as they were based upon the same misconception of the defendant's charter and the Act of 1907 that lead the committee to reject the evidence offered by the defendant.

The remonstrance alleges this improper conduct of the committee apparent on the face of the report, and claims that the report, for this reason, cannot be accepted. This claim must be allowed. The report must be set aside, and recommitted, in order that the committee may rehear the parties de novo as to the compensation to be awarded, ascertain what, if any, amounts have been paid by the defendant to the owner of the ferry and to the Enfield Bridge Company as damages as provided in the defendant's charter, and include the amounts thus paid in the sum which the committee shall find will justly compensate the defendant for its property taken by the State. It was strongly urged upon argument by the defendant that the interests of the State, as well as of the defendant, demanded an immediate judgment, fixing the amount of just compensation, and that these interests would be greatly jeopardized by any rehearing before the committee. However this may be, the Superior Court is bound to set aside and recommit the report. What arrangement can or should be made by the parties to secure an immediate judgment is a matter for agreement between them, which we cannot consider.

The Superior Court is advised to sustain the remonstrance, to set aside the report of the committee and recommit the same for a rehearingde novo as to the compensation to be awarded, but with instructions to assess the sum which will justly compensate the defendant for its property proposed to be taken by the State, including in that sum such amounts as the committee shall find have been paid by the defendant, as provided in its charter, to the owners of the Thompsonville Ferry and the Enfield Bridge Company as damages. This advice, however, is without prejudice to the right of the defendant to withdraw the remonstrance should it so desire.

No costs will be taxed.

In this opinion the other judges concurred, except PRENTICE and THAYER, Js., who dissented.