Hartford v. Day

Andrews, C. J. The object of laying out a public highway is to accommodate public travel—to meet the demands of common convenience and necessity between the given termini. Clark v. Town of Middlebury, 47 Conn., 834. The question involved must be regarded as to the common convenience and necessity of a highway in that locality. Terry v. Town of Waterbury, 35 Conn., 533. Whenever a new highway is proposed to be laid out by the selectmen of a town, the common council of a city, or a committee of the Superior Court, the general question always must be :—Does common convenience and necessity require a highway at substantially this place ? The expression “ common convenience and necessity ” is often found in the statutes of this State and in our judicial [255] decisions, and is applied to various subjects of a common and public nature. It is an expression not very easy to define, but its meaning may be sufficiently well understood by considering tbe elements of which it is composed. When it is applied to a new highway, one element which properly enters into it is the one of expense—the expense of laying out and constructing the highway, and the expense of maintaining it after it is laid out. Townsend v. Hoyle, 20 Conn., 7; Perkins v. Town of Andover, 31 id., 601; Hoadley v. Town of Waterbury, 34 id., 38; Congdon v. City of Norwich, 37 id., 414; Howe v. Town of Ridgefield, 50 id., 594. It is not, however, the simple question of cost that is to be considered in such cases, but the mixed question of cost compared with the ability of the municipality upon which the expense is cast to bear it. Thus, as it was said in Bristol v. Town of Branford, 42 Conn., 323 :—“ The town upon which some portion at least of the cost of constructing the proposed highway might possibly be thrown, and upon which the duty of keeping the same in repair would rest in the future, had a right to offer evidence as to the expense of construction and reparation. To give this evidence its proper weight the ability, or inability of the town should be known. There can be no fixed rule for all cases—the weight of the burden to be borne and the ability of the town to bear it are to be considered in relation to each other. A town with a grand list of fifty millions might quite conveniently, and even profitably to itself, construct a highway at a cost of thirty thousand dollars, while it would be unreasonable to impose such an expenditure upon a town with a grand list of only one million. It was the plain duty of the committee to consider the cost of building and maintaining this road and the ability of the town, in determining the question of common convenience and necessity.” This is the rule which a committee appointed by the Superior Court to lay out a highway should follow. The finding in the present case shows that the judge did, in substance, do just what a committee of the Superior Court would by law have been required to do. He considered the [256] question of expense as compared with the ability of the city of Hartford to bear it. The precise point complained of by the appellant is that the judge in passing upon the question of common convenience and necessity, did not give to the element of expense the same weight which a committee of the Superior Court would by law be required to give it. This objection assumes that there is some standard fixed by law, by which the element of expense is, in all cases, to be determined. We are not aware that there is any such standard, and appellant’s counsel do not point out one to us. Indeed, from the nature of things, it is impossible that there should be any such fixed standard. The expense, to be sure, is one of the elements which go to make up common convenience and necessity. But in any case where a new highway is to be laid out the element of expense is itself a mixed one, made up of the cost of the highway compared with the ability of the municipality to bear that cost. Until there is some fixed ratio between the cost of a highway and the ability of the municipality to bear the cost, the element of expense in the question of common convenience and necessity must be a varying one. This reason of appeal may be viewed in another aspect. When anew highway in any locality is proposed, the question is whether or not common convenience and necessity require a highway at that place, or in substantially that place. The expense is one of the elements which must be considered. When the proposed highway is within one hundred yards of a railroad track, there is another element which also must be considered:—the one of danger arising from the proximity of the railroad; danger both to persons traveling on the highway and to persons on the railroad. Except for this element of danger the approval of a judge would not be required. And as it is this element of danger which makes necessary the approval of a judge, we think it is this element which the judge should mainly consider. The approval of the judge implies an adjudication upon this element of danger. Bailey v. Hartford & Conn. Valley Railroad Co., 56 Conn., 457. The command of the statute (§ 2700) is that [257] the judge shall not approve such a layout unless he finds that common convenience and necessity require such highway to be within such distance. The question involved in the judge’s approval is not the general one of whether or not there shall be a highway at this place, but the limited one whether or not the highway shall be within one hundred yards of the railroad. Before there can be anything for the judge to approve or disapprove, the general question must be answered in the affirmative. The alternative to the approval of the judge is not that the highway must not be built at all, but that it must not be built within the prohibited distance from the railroad track. So far as the question of expense enters into the limited question upon which the judge acts he must consider it. Incidentally, perhaps, the expense of the entire layout might be involved, and then he must consider the whole expense, but only so far as it affects the restricted question upon which he passes. There is no error in the judgment appealed from. In this opinion the other judges concurred.