Parsons v. Litchfield County Hospital

Hamersley, J. This action is not brought to enforce the right of an owner of land, burdened with the easement of a public highwajq to protect his ownership and possession of that land against trespass. The acts of the defendant of which the-plaintiff complains were all done within the limits of a described piece of land which adjoins the land owned by the defendant and which is burdened with the easement of the public highway; but it is not alleged by the plaintiff, nor is it found by the court, that the plain *527 tiff owns the fee of this piece of land, or of any part thereof. The plaintiff does not charge the defendant with an unlawful entry upon his land and damaging acts committed thereon, but solely with an unlawful encroachment upon the public easement. The question, what rights the owner (if he were other than the defendant himself) of the land upon which the acts charged were committed might have against the defendant, is not involved in this case. The plaintiff charges the defendant solely with an encroachment upon the public easement, and claims relief solely in respect to the special damage alleged to have been suffered by her in consequence of the public injury. The only special damage alleged is this : In consequence of the defendant’s invasion of the public easement, the public has extended the traveled part of the highway over a portion of the way previously unused, up to the boundary line of the plaintiff’s land, and in doing so have appropriated for public travel the plaintiff’s grass plot which was within the highway and adjoining her land; and in consequence of this use by the public of the public highway, the plaintiff has been annoyed by the passing of travelers in the highway near to her windows and by the dirt and dust from the highway, and the seclusion of her premises has been destroyed. The court has found that the allegations of the complaint which were denied by the defendant have not been proved, and in its finding for appeal has set forth the facts as they were found by the court. The plaintiff urges that upon the facts so found which .are material to the issue raised by the pleadings, the judgment rendered is erroneous. The error in the judgment urged by the plaintiff substantially rests upon two claims: (1) that the acts of the defendant as found by the court constitute in law an encroachment upon the highway; (2) that if the defendant has encroached upon the highway, the resulting damage to the plaintiff as found by the court entitles her to maintain this action. The judgment must stand unless both of these claims are established. There is no foundation for either claim. *528 The essential substance of what the defendant has done as found by the court, is this: It has changed the westerly portion of the highway upon which its land abuts, from a rough, unused and unsightly bank, into a curb and sidewalk, with a narrow strip of lawn between the curb and the sidewalk, and a lawn sloping upward and westerly from the sidewalk, so as to form, with .the lawn existing, on its own land, one lawn. The wrought road-bed, or way for carriage travel, is unaltered by this change. The facilities for carriage travel are no less, but new facilities for pedestrians have been furnished, which have since been used by all the pedestrian travel. Had this extension of a curb and sidewalk, found to have been previously laid on the westerly side of Spencer Street south of the defendant’s land, been carried out in the same way by a village improvement society with funds subscribed for that purpose, with the aid and approval of the selectmen of the town and warden, and burgesses of the borough, and consent of the defendant, the claim that the society had by this action rendered itself liable to an indictment or to an action for damages for an encroachment upon the highway, or obstruction of public travel, could not for a moment be entertained, notwithstanding it does not appear that the warden ■ and burgesses had taken the formal steps necessary to give the sanction and authority of the borough to the laying of the curb and sidewalk. No ground of liability, for such action is supplied by the fact that the improvement was made by the defendant at its own expense, in view of the improvement of its own land involved in the improvement of the highway. Burnham v. Hotchkiss, 14 Conn. 311, 319; State v. Merrit, 35 id. 314, 318. By removing the wall which had previously served to mark the boundary line between the highway and its own land, the defendant has in no way affected the respective rights of the public and itself; it has neither appropriated the land in the highway to its exclusive use, nor dedicated its own land to the public use. But even if the action of the defendant could be re *529 garded as a technical encroachment upon the public easement, the facts found by the court show no resulting damage to the plaintiff which entitles her to bring this action. No claim is made that the acts of the selectmen in widening the existing traveled road-bed to meet the increasing demands of public travel were unlawful. Their action was caused by the increasing travel and the public demand, and cannot be said to have been caused by the action of the defendant; it was after, but not, therefore, on account of, its action. The court finds that the property of the plaintiff was not depreciated in value, either by the acts of the defendant or by those of the selectmen, and that no right attaching to the ownership of land abutting on a highway, whether of ingress and egress or of light and air, has been affected by those acts. It is manifest that the rights claimed by the plaintiff, of enforcing her preference for a view of a rough bank covered with boulders and bushes to that of an ornamental walk; of freedom from the annoyance of dust and dirt incident to the use of a highway for public travel; and of preserving for her dwelling-house the seclusion incident to a country road after its use by the public as a-city street, are not property-lights attached to the ownership of land abutting upon a public highway. There is no analogy, such as that claimed by the plaintiff, between the right of an owner of land whose value is greatly enhanced by its outlook on a public park, to protection against one who unlawfully destroys that park and thereby greatly diminishes the value of the adjoining property, and the alleged right of this plaintiff as owner of land with an outlook on an unused portion of a public highway, to protection against one who unlawfully improves the appearance of and adapts to public use that unused portion and thereby enhances the value of the adjoining property. The plaintiff’s claim of error that vitiates the judgment is stated in the reasons for appeal in 29 paragraphs, each averring that the court erred in overruling the claim of law therein mentioned as having been made by the plain *530 tiff upon the trial. Many of these so-called claims of law-are merely claims as to facts proved by the evidence, and are settled by the finding of the court; many others are claims of law not applicable to the facts as found, and are therefore immaterial and not reviewable here. The remaining claims .state in different forms the two essential claims we have considered, and were properly overruled. The exceptions to the rulings of the court upon questions of evidence are not well taken. Upon the trial the defendant asked each of several witnesses the following question : “ Whether or not in your opinion the plaintiff’s property has been damaged by reason of the acts of the defendant in grading said bank and in setting and laying said curb and sidewalk ? ” The court admitted this question against the objection of the plaintiff. The question was not objected to on the ground that the effect of the changes upon the plaintiff’s property was not admissible, nor upon the ground that this effect could not be shown by the opinion of witnésses, but solely on the ground that the witnesses had failed to qualify as competent to express an opinion as to whether the plaintiff’s property had been damaged or not. Each witness testified that he was the owner of real estate in said town and in a general way familiar with the value of real estate in Winsted, and that he was familiar with the plaintiff’s premises, with said Spencer Street, and with the improvements or changes made thereon by the defendant. This testimony tended to show some special qualification for forming an opinion as to whether this street improvement damaged the adjoining property or not. Whether or not the facts shown as the foundation of such qualification are sufficient for that purpose is, under our practice, largely a matter of judicial discretion. Barber v. Manchester, 72 Conn. 675, 684, 45 Atl. 1014. In this case the court does not-appear to have' exceeded the limits of its discretion. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.