Skinner v. Hartford Bridge Co.

Ellsworth, J. In 1808 the legislature chartered the defendants to build a bridge over Connecticut liver, and a causeway through the East Hartford meadows. In 1810 the legislature passed an act providing for the assessment, by a committee named, of damages to land proprietors. This assessment was immediately made by the committee, who also made their report to the same legislature, which was approved and accepted. These land damages were at once paid to and accepted by the persons in whose favor they had been assessed, and among them was the person under whom the plaintiff holds the land in question. The legislature directed in the charter that the causeway should be raised at least twenty feet, which was done to the acceptance of the committee. From that time to the present, now more than fifty years, this causeway has been treated and used by the public, without objection, as a public highway. [535] We think it now quite too late, if it ever could have been done, to call in question the legality of the laying out of the causeway, upon the ground that the act providing for the assessment of damages, which was essential to the legality of the proceeding, had not taken effect by the rising of the General Assembly at the time when the assessment was made. It is contended by the plaintiff that, as the law then stood, acts of the legislature took effect only at the final adjournment of that body, where it was not otherwise expressly provided, and that consequently there was no act in force authorizing the assessment and the taking of the land, when the assessment was made and the land taken. We think this altogether too great a refinement for the settlement of a practical question like this. It is not perhaps entirely clear at what time, independently of statutory provision, (and there was none- in Connecticut at the time in question,) a general law, or private grant and resolution of the General Assembly, should be held to take effect, whether from the first day of the session, as perhaps is the common law, or from the approval of the act by the executive, or from the rising of the Assembly. Questions over nice and curious on the subject have been made in the cases, and some decisions have been read in the argument, especially with regard to the taking effect of criminal laws, which seem to me to confound all distinction between guilt and innocence, and which have been confessedly so unjust in their operation as to call for executive interference. In most states these questions are no longer open for discussion, the time for the law to take effect being fixed, as it now is with us, by statute. We are very willing therefore to pass over the whole discussion without expressing an opinion on the subject, as we are at liberty to do, since the case does not require a decision of the question. The damages, whether legally assessed or not, were in fact assessed in favor of the plaintiff’s grantor, and were accepted by him as damages for the land taken; and the causeway thus laid out and paid for has been ever since treated and held, without objection from any quarter, as a public highway. In these circumstances the plaintiff is clearly estopped from calling in question the validity of the proceedings [536] under which the causeway was laid out and the damages assessed and paid. This doctrine of estoppel has often been before the court, and has been applied by us in cases presenting defects and irregularities more serious and questionable than any suggested in this cause. We refer particularly to the cases of Hawley v. Harrall, 19 Conn., 142, Whittlesey v. Hartford, Providence & Fishkill R. R. Co., 23 id., 421, and Hitchcock v. Danbury & Norwalk R. R. Co., 25 id., 516. We will only add that the legal presumption is that damages were assessed in this instance for a causeway of any height which the public convenience should require, and not for one of any particular height, as claimed by the plaintiff’s counsel; nor could its exact height, whether a little more or less, be material in the assessment of damages for the land taken. The plaintiffs case does not seem to rest so much upon this claim for land damages, as upon a claim for damage caused by the subsequent raising of the causeway beyond the height originally required. This it is which, as he alleges in his declaration, has put him to great inconvenience, obstructed his passage to and from his dwelling house, darkened his windows, and subjected him to increased dust and drainage of water from the causeway, and generally has made his dwelling-house loss comfortable and convenient as a habitation. Now the court submitted to the jury the question whether the defendants, in what they had done, had conducted fairly and reasonably; for, if they had not, certainly they were liable; and the jury found that they had, and that public convenience ■and necessity justified and required the raising of the causeway in the manner in which it was done. This being established, it is not easy to see on what principle of law or public policy the defendants can be made liable for the natural consequences of the act; for it will not be contended that persons living on a highway can sue the officers of the government for the damage, no matter how real, which may result from a necessary change in the grade of the road ; and these defendants are clothed with like powers in relation to this causeway under the provisions of their charter. A contrary doctrine, such as the plaintiff must adopt if he will maintain his case, [537] ■would arrest not a little the work on highways however essential to their usefulness, for it is scarcely possible but that somebody can show that he has sustained some kind of damage or inconvenience from every material alteration of a road. No such doctrine can be admitted. Every man when he builds upon land adjoining the highway does so at the risk of changes in its grade, and well knows this, and places his house higher or lower in view of it, judging as well as he can as to the probabilities of any such change. How absurd then would it be if the plaintiff, by building on the line of the causeway, could thereby control the grade of it to suit his convenience without regard to that of the public. It is not for the plaintiff to determine when and in what manner the road may be altered, lest it should be made more dusty, muddy or otherwise uncomfortable to him. Upon this topic we refer to the cases of The Governor &c. v. Meredith, 4 T. R., 794, Noyes v. Ward, 19 Conn., 250, and Hooker v. The N. Haven & Northampton Co., 14 id., 147, and to the numerous cases cited by Williams and Sherman, Js.,in their opinions in the latter case. In our view of this case, the resolve of 1858 presents the only ground of doubt as to the right of the defendants to raise their causeway in the manner they have done. Possibly this resolve may be construed so as to reach this case, and yet we should give it this construction with extreme reluctance, for we are persuaded that it would be to the prejudice of the public, as well as in violation of the rights of the defendants, who have a close charter which is unrestricted as to the height of the causeway, except that it must be at least twenty feet. If by reason of high water the public travel requires that it should be higher than twenty feet, and tlie defendants are willing to meet this want, and raise the causeway at their own expense, we know not why it may not and ought not to be done. Certainly the plaintiff has no ground of complaint, as his damages (if indeed there be any,) are not, as we think, of the character contemplated by the resolve of 1858. Besides, the resolve purports to take away only what was given by the resolve of 1857; but the defendants do not admit [538] that they derive the right to raise the causeway from that resolve. They claim the right under their charter, which is a close one, and insist that this right could not be taken from them. The resolve of 1857 was not passed at their request, nor have they accepted it; and they insist that they are not under the necessity of claiming any thing under it. They further insist that if the resolve of 1858 is to be held as taking away the license of the resolve of 1857, then they had substantially done the work complained of before the former resolve was passed, and therefore can not justly or constitutionally be affected by the repeal of it. We are inclined to regard this claim as having some force, and under other circumstances we should feel called upon to give it much consideration ; but we place our decision on the other ground already stated, being satisfied that the resolve of 1858 was not intended to embrace damages such as are now sued for. We are inclined to think that the framers of the resolution had in view damages caused by back water from increasing the height of the causeway. At all events, they did not, we think, mean to touch the remote and incidental damages complained of in this action. We do not advise a new trial. In this opinion the other judges concurred. New trial not advised.