Fitch v. New York, Providence & Boston Railroad

Andrews, C. J. The record presents only a single question :—Was that part of the charge given by the trial judge to the jury recited in the finding erroneous ? The finding shows that it was conceded on the trial that the defendant railroad company was in the possession of the land which it had taken under proceedings condemning it for railroad purposes ; and the verdict has settled that the forty-foot strip, to which the condemned land adjoined on the north, was a public highway, part of Eighth street, so-called, in New London. The plaintiff insists that the charge was erroneous, because, he says, it in effect told the jury that the railroad company, having taken the land adjoining the highway for railroad purposes by condemnation proceedings, acquired thereby the same rights within the highway that a purchaser of that land by an absolute deed would have acquired, and that the possession b}? the railroad company of the land so taken was an ouster of the plaintiff therefrom. The language used by the judge is not quite as broad as the argument of counsel. His language was that the taking of the land on the north side of the highway by condemnation gave the railroad company “ a right to one half of the highway subject to the public use.” If this language means just what the plaintiff’s counsel say it means, we should be inclined to think that it was erroneous. The interest, or estate, which a railroad corporation acquires in land taken by it for railroad purposes by condemnation is, and from the nature of the user must be, a right to the occupation of it, exclusive in point of user, and practically unlimited in point of duration. This right, [420] while for many purposes it is substantially equivalent to the fee, is not the fee. Possession under this right would not be adverse to the reversioner. But we do not understand the language of the judge, when the whole of it is read, to mean quite what the plaintiff argues. Any charge of the court claimed to be erroneous must be considered, not in the abstract, but with reference to the actual facts in the case. A railroad company in the occupation of land taken by it for its purposes, if such land adjoins a highway, may do anything in the highway which any occupier of such land may lawfully do, or anything—not depending on the ownership of the fee—which the owner of such land might himself do. An\' occupant of land abutting on a highway may do many things in the highway by reason of such occupancy. Such an occupant would undoubtedly have the right of free ingress and egress, and for that purpose might grade the surface of the highway’, if he did not thereby render the surface unfit for public travel. He might ordinarily construct a sidewalk, set hitching posts, place a stepping stone to enable passengers to enter or alight from a carriage more readily, ór set out shade trees. It appears that the defendant railroad corporation was using the land adjoining the highway to build thereon the approach to the bridge over the Thames river. This use is closely analogous to the occupation of lots in a city, where it is allowable, in the building or repairing of houses, to excavate within the line of the highway to lay down the foundations; or for the purposes of water pipes or drains or sewers ; or to place building material in the street; and the only limitation on these acts is that they must not be unnecessarily or unreasonably interposed or prolonged. O'Linda v. Lothrop, 21 Pick., 292 ; Shepherd v. Baltimore & Ohio R. R. Co., 130 U. S. R., 433 ; Hundhausen v. Bond, 36 Wis., 29 ; Clark v. Fry, 8 Ohio St., 358 ; Wood v. Mears, 12 Ind., 515 ; Commonwealth v. Passmore, 1 Serg. & Rawle, 217 ; People v. Cunningham, 1 Denio, 524 ; St. John v. Mayor etc. of New York, 6 Duer, 315. Within the same reasons would be the placing of derricks or staging in the street to aid in build [421] ing. The King v. Russell, 6 B. & C., 566 ; and the opinion of Lord Ellenborough in Rex v. Jones, 3 Camp., 228. It is not wholly clear what acts of the defendant were proved or claimed to have been proved on the trial. The finding is that the plaintiff offered evidence of, and claimed to have proved, a trespass on the piece of land in question, and that the defendant admitted an entry thereon. None of the acts charged in the complaint are such as affect the fee. Thejr are all of a temporary nature and such as affect only the present possession. They are alleged to be done in and about the building of the bridge over the Thames river, and the language implies that when the bridge is complete the acts will cease. These are acts that offend if at all against the easement, which belongs to the public, not against the reversion, which belongs to the owner of the fee. They might be nuisances because they unreasonably interfere with public travel, but we do not think they would be trespasses for which the reversioner could have any action. In ordinary eases any unlawful entry on the land of another is a trespass; but where the locus in quo is a highway, an entry upon it is not a trespass. In such case it is incumbent on the plaintiff to prove something more than a mere entry. He must in the first instance prove such facts and circumstances as show that the act was unlawful, or if lawful, that it was done in an improper manner. Munson v. Mallory, 36 Conn., 165. Reading the whole of the charge in the light of the facts of the case we think it was not erroneous. The plaintiff omits the explanatory portion of the charge. When that is- read in connection with what preceded, the instruction becomes precisely what counsel had requested. The judge says he intended to state the law in this respect just as counsel had requested. Counsel had asked “ that it be stated that even if the trespass was made in the roadway and it is found that it is a public way, if the jury find that Mr. Fitch was in possession of the land abutting on the roadway and the trespass was on that part of the roadway abutting on said land, it will still be a trespass.” In re [422] sponse to this request the judge said he thought he had so stated, and then he said to the jury that he intended them to understand it just as counsel had stated. And this direction to the jury followed the part of the charge to which objection.is made. It is difficult to see how the request of counsel could have been more fully complied with. Clearly the plaintiff is in no situation to take any exception. In an action of trespass to land the plaintiff, to entitle himself to a verdict, must show either an actual exclusive possession, or a title in connection with the fact that no one else was in the actual exclusive possession. Church v. Meeker, 84 Conn., 422. The plaintiff could not have been in the exclusive possession of the locus because it was a public highway. He did not show any title to the soil within that highway other than such as might be implied from his ownership of the adjoining land which had been taken by the railroad company. The condemnation proceedings are made a part of the finding. From these proceedings we learn that one Ebenezer Morgan was the sole legal owner of the condemned land. If Mr. Fitch had any equitable interest in that land it is not stated. We have searched the entire record in vain to ascertain any title to the locus in quo by virtue of which the plaintiff can maintain this action. There is no error in the judgment appealed from. In this opinion the other judges concurred.