City of New Haven v. the New York, New Haven & Hartford Railroad

Hamersley, J. Upon the plaintiff’s appeal no error can be claimed, unless the proceedings of the city court of common council constituted a valid layout as against the defendant. It is found that no notice of these proceedings was given to the defendant or its lessor, and that no benefits or damages were assessed against or in favor of them. The statute by authority of which the layout was made, required reasonable notice to be given to all owners of land proposed to be taken, and made the completion of the layout dependent on the payment of compensation. 5 Private Laws, 597,598. It is further found that defendant’s lessor owns the land upon which Hazel street is claimed to cross the railroad, without any right of the public to pass over it as a highway. The defect in the layout is substantial as against the defendant, and is one of which it is entitled to take advantage in this action. Keifer v. Bridgeport, 68 Conn. 401, 407-411. There is no error upon the plaintiff’s appeal. As to the defendant’s appeal. It is conceded that there was no evidence of a formal layout of Ivy street. The court has found a highway by prescription, which has existed since *231 1802, and which has also existed by the dedication of the defendant and its lessor, so far as they had any control, since about 1848. The defendant claims that during the lease of the New Haven and Northampton Co. to the New York and New Haven Co., i. e. from 1849 to 1869, the latter company, being the lessee or tenant, had no power to dedicate a highway as against the former company, the owner of the fee. If the rule here invoked can apply to the dedication of a highway by a railroad company chartered by this State operating a railroad under a lease for a term of years of the whole property and franchise of another company also so chartered (Driscoll v. Norwich & W. R. Co., 65 Conn. 230, 252), it certainly has no application to a case like this where the lessee acts with knowledge and concurrence of the lessor. In such case the tenant is the agent of the landlord. Twiss v. Baldwin, 9 Conn. 291, 308. The plaintiff is not seeking in this action for authority to construct a new highway across a railroad track; and the statute (Public Acts of 1883, p. 284) cited by the defendant, which forbids the construction of a new highway across a railroad at grade, lias no application. It is too plain for argument that the facts found justify the conclusion of the court, that Ivy street is a highway crossing the defendant’s tracks. The brief of the defendant does not seriously contest this. The claims most strongly urged all depend upon this court’s finding upon the evidence a series of facts different from those adjudicated by the trial court. This we cannot do. Of the grounds of exception to the finding which are stated, the only ones we can entertain are that the finding includes a material fact which is entirely unsupported by evidence, or omits a material fact which appears to have been admitted or undisputed. On inspection of the evidence we find no ground for such exceptions. The defendant seems to think that a fact is admitted or undisputed, simply because a witness has so testified and his statement has not been directly contradicted, when it plainly appears that the court did not credit the statement; *232 and that a fact is found without any supporting testimony whenever the claim can be made that the evidence against it is stronger than the evidence in its support. This is an entire misapprehension of the law plainly stated in recent decisions. We incline to thinlc that the fact that the document marked “ Land Plans,” etc., was produced from its proper custody, where it had been kept for more than thirty years, dispensed with other proof of its authenticity, i. e. that it was what it purported to be. At all events the court admitted it as being the “ Land Plans,” etc.; holding it to be admissible for the purpose of locating certain land conveyed to the defendant’s lessor by a deed which referred to the “ Land Plans,” etc., for a more particular description, but not admissible “ as a map of the land in controversy.” The defendant claims that ruling to be erroneous. Whether the infirmities which the court found attached to the document as a map of the land in controversy, i. e. the highway where the railroad was built across it, went wholly to its weight and not to its admissibility, is not quite clear. Wooster v. Butler, 13 Conn. 309, 314; Noyes v. Ward, 19 id. 250, 269. But assuming it to have been technically admissible as such map, we do not see how its rejection for that purpose can have injured the defendant. It was in fact in evidence and before the court; the infirmities found, which in the judgment of the court made it too unreliable for admission, certainly went to its authority, so that the error of the court, if any, in dealing with the map, was largely theoretical. In view of the facts found, the result must have been the same had the document been formally admitted for every purpose. Of course, if the trial had been to the jury, the question would be of a different character. There is no error upon the defendant’s appeal. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred, Baldwin, J. with hesitation as to the point that no harm was done to the defendant by the exclusion of the land plans.