N. York N. England R. R. Co. v. City of Waterbury

The legislature in the year 1883 passed an act "concerning the crossing of railroads by highways." It provided, in one of its sections, that "whenever a new highway or a new portion of a highway should thereafter be constructed across a railroad, such highway or portion of highway shall pass over or under the railroad, as the railroad commissioners shall direct. The company or trustee operating such railroad shall construct such crossing to the approval of the railroad commissioners, and may take land, for the purposes of this section, in the manner now provided by law for the taking of land by railroad companies. One half the expense of such crossing shall be borne by the company or trustee constructing the same, and the other half thereof shall be paid to said company or trustee by the town, city or borough which constructs said highway or portion of highway." Gen. Statutes, § 3481.

After the passage of this act the board of road commissioners of the city of Waterbury, upon due notice to, and after hearing, all owners of land proposed to be taken thereby, laid out a highway in said city, called Fifth street; which lay-out crosses the track of the applicant and includes and takes therefor land in which it has the estate in fee. By direction of the railroad commissioners the highway was made to pass under the railroad. The railroad company constructed the crossing to the approval of said commissioners, at an expense of $7,755.19. One half of this sum has been paid by the city, but the railroad company has demanded the other half and claims to be entitled thereto.

On July 11th, 1887, the board of compensation of Waterbury assessed and determined that the city pay to the railroad company, in full of all damages over and above all benefits accruing to the applicant from the said lay-out and extension of Fifth street, the sum of $198, and made its report accordingly to the court of common council of the city. The report was accepted and duly recorded and said assessment of benefits and damages was confirmed and adopted by the court of common council and approved by the mayor of the city. Thereupon the railroad company brought its application in due form for a reassessment of damages.

The Superior Court finds that if said one half of the cost of conveying the railroad over the highway, which has not been paid to the railroad company by the city, is to be taken into account and allowed, in estimating the damage to which the company is entitled, the damages are $4,027.59; otherwise the damages are $250. The question what judgment shall be rendered upon the facts of the case is reserved for the advice of this court.

The contention of the railroad company is that it is entitled to claim and receive, as part of its damages for the taking of its land for the highway, compensation for the entire expense which it was compelled to incur in constructing the crossing as directed by the railroad commissioners. It insists that the statute dividing the expense is not applicable to this case, and that to apply it and enforce it would be in violation of the provision of our constitution that the property of no person shall be taken for public use without just compensation therefor.

The statute was passed, as is well known, as part of a general plan to diminish the number of grade-crossings. Of course the legislature did not contemplate, when it provided that one half the expense of constructing crossings under its provisions should be borne by the railroad company, that it, in turn, could recover such half from the town, city or borough constructing the highway, under a claim for damages consequent upon the exercise of the right of eminent domain in taking land of the railroad for highway purposes. The applicant nevertheless claims that the entire expense of constructing the crossing is damage incident to the taking of its land by the condemnation proceedings, to which it is entitled as just compensation. It argues that inasmuch as the law compels it to build the bridge and pay one half of the expense of so building, therefore Waterbury must pay such one half of the expense in addition to its own share, as just compensation for taking the land.

The charter of the New York New England Railroad Company is not what is called a close charter, but is subject to legislative amendment. All general laws and mere matters of police regulation, affecting corporations, are binding without their assent. New Haven Derby R. R. Co. v. Chapman, 38 Conn., 71. The act in question has the effect of an alteration of the charter of a company, previously incorporated by a charter which did not impose the duty, but which contained a provision that it might be altered at the pleasure of the legislature.Bulkley v. N. York N. Haven R. R. Co.,27 Conn., 479.

It was held in English v. N. Haven Northampton Co., 32 Conn., 240, that, under the power to amend a charter, the General Assembly had a right to impose upon the defendant any additional condition or burthen, connected with the grant, which they might justly have imposed originally. In that case the defendant's charter empowered it to construct and use a railroad terminating in the city of New Haven, and provided that the construction and use of that part of the road within the limits of the city should be subject to such regulations as the common council should prescribe. After the defendant had constructed its road and built bridges over the same within the city and to its acceptance, the legislature passed an act authorizing the common council to order the bridges widened in such manner as public convenience might require, and to enforce the order. It was contended by the defendant that the act was unconstitutional as impairing the obligation of the contract of the state, and as taking its property without compensation therefor. But the court held the contrary and sustained the statute.

This court said, in City of Bridgeport v. N.York N. Haven R. R. Co., 36 Conn., 264 — "There have been many decisions where new highways have been laid across railroads and the railroad company have claimed damages for increased liability to accidents at the crossings or for increased expense of ringing the bell or for liability to be ordered by the commissioners to build a bridge over the track or to keep gates or flagmen. All such claims for damages, and all claims that were not direct and immediate burdens, have been uniformly holden too contingent and remote to be the basis of an assessment for damages."

There can be no doubt of the right of the legislature to require railroad companies to bridge their crossings of existing highways at their own expense. The case ofEnglish v. The New Haven Northampton Co.,supra, fully recognizes that right, and it is expressly held in N. York N. England R. R. Co.'s Appeal fromRailroad Comrs., 58 Conn., 532. In the latter case this court says "that such crossings are public nuisances, dangerous to human life, and no man has a vested interest in the creation or continuance of such a nuisance. In the exercise of the power of protecting human life the legislature may at any time and without notice abate it or prevent its existence." The same right is strongly affirmed in People ex rel. Kimball v. Boston Albany R. R. Co., 70 N. York, 569.

The applicant argues that, the law being so that if a factory building must be raised or lowered, shored up or moved, in consequence of the, taking of land of a manufacturing company for a highway, such company must be paid enough to make good the expense so necessitated, therefore the same rule must be adopted in respect to the construction of the bridge in this case, required by the law. But the cases stand upon a very different footing. In one the damage is the direct, natural, unavoidable result of the taking. In the other the damage is in no way directly or naturally connected with the taking, but artificially, and by means of a statute which has respect to the safety of the public and not to the damage of the party whose property is taken or to the benefit of the party who takes it.

The question before us is an interesting one and not entirely free from difficulties. The statute requires the applicant to construct a bridge over the highway which is laid out across its track. Now, because it owned the land taken for the highway crossing in fee, and it was therefore taken under the exercise of the right of eminent domain, can the applicant demand, by way of just compensation, that the one half of the expense, which the law requires him to pay, shall be paid back to him by the respondent? We think not.

Compensation for expense arising through such statutory obligation is not a legal element of damage. There is no right to compensation for what the law says shall be done at the expense of the railroad company. It is not a taking of property to compel it to pay one half the expense of building a bridge to protect the public, nor damage incident to the taking of property within the true meaning of the words. We cannot hold that a duty which the state has most justly imposed upon the applicant, as its share towards the protection of life, should be turned into an element of damage, for which compensation must be made when circumstances arise which create the duty. We are well aware that there are decisions that, where highways cross a railroad, the expense of cattle-guards, signs and planking is an element of damage which must be paid for. Different states have decided differently upon this point. Mills on Eminent Domain, § 33. Perhaps it is impossible to discriminate between those cases where compensation has been awarded and the case at bar. But the precise question here involved is substantially novel, and, at the risk of antagonizing the rule, if it exists, of allowing compensation for the expense of erecting statutory safeguards, we must decide this case upon the principles we have stated.

The Superior Court is advised to assess damages in favor