The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1897-04-08
THE GROUND OF DECISION
IN THE NEWINGTON TRAMWAY COM
P1NY CASE.

Judge Baldwin's opinion-Why He Holds
There Was Error in the Lower Court
Views of Justices Who Agree to Result
But Differ on Premises.
The opinion of the justices of the SUI
preme court in the case Of the Canasto-
ia Knife company against the Newlng-
ton TramWay company, spoken of yes
terday, is one of special interest to
many Appended will be found copious
extracts from the opinion of Judge
Baldwin, with alteration made by
Judge Fem, and in which he concurs.
The other justices, while agreeing in
finding error, do so on the ground that
a street railway imposes additional SER
Vitude upon land over which it passes,
and no charter granted by the general
assembly can destroy the right of the
owner of the land to recover for such
servitude.
POINTS MADE.
Judge Baldwin says: TT is the pre-
vailing doctrine In the United States,
and was settled, as respects this case,
in the case of INLAY Union Branch Rail-
way company, rs Conn, 249, that the To-
cation of an ordinary steam railroad
upon highway imposes an additional
burden upon the SOIL for which the
owner of the fee is entitled to demand
compensation. The essence of
the decision was that the grant of a
railway franchise by the legislature,
authorizing the occupation of land SUBJ
ject to a highway in such a manner as
substantially to Interfere with the prop
er uses of a highway, or substantially
to change them by introducing anoth-
er, not practically identical with the
original ones, was the bestowal Of a
power, the exercise Of which charged
the land with new servitude.
USE OF A HIGHWAY.
I'm determining what are the uses of
a highway under the common law Of
Connecticut, and whether it's occupa-
ton by an electric street railway can
be one of them, the preamble of our
earliest statute upon the subject speaks
with some authority. This
court has said that in these words is
found statement Of the principles
which should govern and ever have
governed the legislation Of this state as
to the maintenance Of highways, and
that as they have regard not only to
providing for the comfort Of man and
beast, but for the profit and advantage
Of the people, they must be held to
have originally contemplated all such
improvements in structure and grade
as occasions, occurring in consequence
of the advance and growth of the coun-
try, and particularly Of populous and
growing cities, should make necessary.
Whoever holds property subject to a
public trust holds it subject to the
same extent to public control. The
owner of the fee in a highway holds his
estate subject to a public right, which
is equally, and for similar reasons,
subject to public control 50 far as may
be necessary to protect the public in
the full enjoyment of whatever belongs
to them This power of control resides
primarily in the general assembly. 1t
is their Judgment that street railroads
furnish a proper means Of accommo-
dating public travel on highways; and
the judicial department of the govern
ment will not pronounce charters
granted for their construction to be in
valid because they make no provision
for additional compensation to the
owners Of the soil, unless forced to the
conclusion that to give them effect
would necessarily sanction the invasion
of private rights
"But as yet there Is a substantial iden-
tfty In many particulars between the
use of highway by an electric car
and that by an ordinary vehicle, both
moving upon the same grade.
New York is the only state in which
the courts have accepted the position
that railroad, designed for the trans
portatton of passengers, or passengers
and property, and not operated by
steam, imposes a new servitude on the
soil Of city or village street; and this
conclusion is there rested on the ground
that the railway company has a right
to an exclusive character to the rise Of
its tracks, which is, to q certain ex-
tent, paramount to the general public
right of travel. No grant of
any power of eminent domain is to be
found in the charter Of the Newington
Tramway company. If, therefore, the
franchise to construct a street railway;
which it assumes to grant, cannot be
exercised in case Of objection on the
ground part of any Of the abutting
land owners, without the aid of com
pulsory proceedings, 1t must fail of eff
feet, and fail because the charter is
in conflict with the constitution, in
that 1t purports to allow the taking
of private property for public use with
out just compensation.
1.-THE plaintiff sets up that 1t owns the
fee in certain land within the limits of
a highway in Newington, upon which
the defendants threaten and intend to
construct street railway. An injunc-
ton is claimed on two grounds: First,
that the charter of the Newington
Tramway company imposes new bur-
den on the plaintiffs soil, and, second,
that it has wrongfully conspired with
the other defendants, the Central Rail-
way and Electric company and the
Hartford Street Railway company, to
use it's charter for laying railway
track upon the land in question, under
q location which DIVORCES substantially
from any of the routes authorized, and
is. In fact, another route designed to
constitute merely part Of a through
railroad between Hartford and New
Britain. The charter in question is not
one which, under the principles which
have been stated, contemplates and re-