Williams v. Hartford & New-Haven Rail-Road

Waite, J. It appears from the record in this case, that the defendants, having, in pursuance of the provisions of their act of incorporation, caused the centre line of their road to be surveyed, approved, and established, applied to the plaintiff in error, over whose land the road passed, to agree with them upon the amount of damages that would accrue to him. Being unable to make such agreement, they applied to the superior court, and procured the appointment of freeholders to assess the damages. It is now claimed, that that appointment was erroneous, because at the time it was made, the width of the road had not been established. It is not denied but that every act was done, necessary to give the court the power to make the appointment, except the designation of the width of the road. Was that indispensably necessary before the appointment could be legally made ? This must depend upon the language used in the act of incorporation. It is insisted, that not only the line or course of the road should be approved by the commissioners, but the icidth also. Upon examining the act, we do not find that to be required, either by any express provision, or by necessary implication. The only part of the act which prescribes the duties of the commissioners, is found in the seventh section. It is there provided, that “ said company may, by their agents, surveyors, engineers and servants, enter upon such route or places to be designated by the directors, and approved by three commissioners to be appointed by the General Assembly for that purpose, who shall have no interest in said rail-road, after notice to the persons whose lands or estate may have been taken, and after hearing all objections which may, by such persons, be made to the location made by the directors as to the line, road, course or way whereon to construct said rail-road or way.” When the directors had designated the centre line of [116] ^le'r roa(l) they had designated the route, within the require-of their charter ; and when that was legally approved . . . . , , , i , « by the commissioners, the route was established. By the first the company are “authorized to lay out their road not exceeding six rods wide through the whole length ; and for the purpose of cuttings and embankments, and for obtaining stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road.” There is nothing in that section requiring any approbation by the commissioners. When the centre line was established, the company were limited in the construction of their road to a distance not exceeding three rods from that line. They might take less than a quantity six rods wide, — that is, three rods on each side of that line, — but could not take more, unless necessary for cuttings and embankments, or for obtaining stone and gravel. In the ninth section, the company are “ authorised to construct, erect, build, make, and use a single, double or treble rail-road or way, of suitable width and dimensions, to be determined by the directors in the line or course by them designated.” Here nothing is required of the commissioners. The directors are authorised to determine the width of the road, not exceeding six rods, as provided in the first section, upon the line or course designated. The line or course here referred to, obviously means that which, by the seventh section, was to be designated, by the directors, and approved by the commissioners. But it has been said, that in the clause requiring the commissioners to approve of the route or places, after hearing all objections as to the line, road, course or way, the word “or” is to be construed “ andand that the true construction is, that the commissioners must approve of the route and places to be taken for the road, and establish the line, road, course and way. This construction evidently is a manifest departure from the express language of the charter. There is no doubt but that in some instances in construing devises and statutes, or has been holden to mean and. But that can only be done where it is necessary to correct an apparent mistake, and make sense of what would otherwise be absurd. Mansfield, C. J. in giving such a construction to a will, observed, that “ the idea of a devisor giving an estate” in the manner claimed, upon [117] a literal construction, “ was so absurd and improbable, that it was next to an impossibility to impute such an intention him.” Fairfield v. Morgan, 2 New Rep. 38. 56. Lord Kenyon, C. J. in giving a similar construction to a statute, ° ... . . said : “ I would adopt any construction of the statute, that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for by the defendant.” Fowler v. Padget, 7 Term Rep. 509. 514. Now, in the present case, we can discover nothing so absurd, improbable, or monstrous in the act as will justify a departure from the express language used. The legislature may have considered the rights of the citizen sufficiently guarded, when they provided, that the line or course of the road, should receive the sanction of disinterested commissioners, and then the company be allowed to construct the road upon that line, of such width as they considered proper, not exceeding six rods. The commissioners have the power of protecting the lands of individuals from improper encroachments, by refusing their approbation of a centre line, which shall approach within three rods of any land that ought not to be taken ; or which shall make it necessary to take any other line foi cuttings and embankments, or for obtaining stone and gravel, that ought not to be used. There is no doubt but that, before the damages can be legally assessed, the quantity of land taken, should be designated, so that the freeholders may know what to appraise. But the act of incorporation does not require this to be done before the freeholders can be appointed. As soon as the route is established, the parties are in a situation to negotiate respecting the damages. They know where the line is, and the greatest quantity of land which can be taken on each side of it. In this negotiation, the company may stipulate for a quantity less than a tract six rods wide, provided a road can be constructed upon it, of suitable width and dimensions ; but cannot take more than that. After the line or course of the road has been duly established, and the parties disagree as to the amount of damages, the company are authorized to apply to the superior court for the appointment of freeholders. When they are called upon to make the assessment, they must be informed as to the lands taken. [118] R has been further said, that it does not appear from the return of the freeholders what land they appraised. This clearly can furnish no foundation for a writ of error. Their doings were not returned to the court, but to the clerk ; and by him recorded. There was no act done, or required to be done, by the court, upon that return. The court, therefore, cannot be chargeable with error in relation to a matter which was never before it. For these reasons we are of opinion that there was no error in the proceeding of the court below. But for another reason the present writ of error cannot be sustained. The proceeding in the superior court, was not such as to lay a foundation for it. It was simply an application for the appointment of freeholders to assess damages occasioned by the laying-out of the road. It is true, the application was made in a formal manner, setting forth the reasons for requesting the appointment. Notice was served upon the adverse party, who appeared and shewed cause against the appointment. But this formality in the proceeding cannot give the parties a right to review the question upon a writ of error. “ This writ,” says Lord Coke, “ lyeth when a man is grieved by an error in the foundation, proceeding, judgment or execution ; but without a judgment, or an award in the nature of a judgment, a writ of error doth not lie.” Co. Litt. 288. b. In the state of New- York, a summary application was made to the supreme court to review the proceedings of trustees under the absconding debtor’s act; and the court, by virtue of the authority conferred upon them by statute, heard the parties, and made their decision. A writ of error was afterwards brought to the court for the correction of errors, and dismissed, upon the ground that it would not lie in such a case. Chief Justice Savage, in giving his opinion, said, that decisions thus made could never be thrown into the shape of a record, and become the subject of review in any other court; that the rule that error does not lie where the court acts in a summary manner, in a course different from the common law, he considered too well settled to be disturbed. In the matter of Negus, 10 Wendell 34. Perhaps in this state, where the proceeding by certiorari has never been adopted, a more extended application of the remedy by writ of error, may, in some cases, have been made; [119] yet that application is by no means unlimited. White v. Trinity Church, 5 Conn. Rep. 187. Lewis v. Hawley, 1 Conn. Rep. 49. Doane v. Cummins, 11 Conn. Rep. 152. To extend the remedy to a case like the present, would be a manifest j . , , departure Irom the principles oi the common law, by any practice in Connecticut. The writ of error, therefore, must be dismissed. The other Judges were of the same opinion, except Williams, Ch. J., who gave no opinion, being related to one ot the parties. Writ of error dismissed.