Borough of Stamford v. Stamford Horse Railroad

A liorse railroad company was incorporated by the General Assembly upon a petition asking for a charter and specifying streets in the borough of S in which it desired to lay its tracks, and upon a published notice, required by law, that such a petition would be presented, which also specified the streets proposed to be occupied. The General Assembly granted the charter, specifying four terminal points in different quarters of the borough between which the track might be laid and the particular streets through which the road might run, omitting two that the petition had named and adding one that was not named, the section closing as follows:—“ and over and across any highway within any of the points of commencing or termination aforesaid.” Held that the company had no right to lay its track through any street not specified. And held to be no objection to the granting of an injunction against the laying of the track in such a street, that the borough would have the right to remove it by force when laid. Where a party has a remedy by his own act involving the use of force, it does not constitute that adequate remedy at law which excludes equitable relief. The borough, being charged with the duty of keeping its streets in proper condition for public travel and responsible for their being so, was the proper party to apply for an injunction against the unauthorized laying of the track in the streets.

Suit for an injunction against the laying of its track, by the defendant corporation in a certain street of the plaintiff borough; brought to the Superior Court in Fair-field County. The following facts were found by the court. The plaintiff borough was incorporated in 1882. By its charter it was made the duty of the borough to make and repair streets within its limits, to keep the same in order and to remove all obstructions upon them. The defendant company was incorporated in 1886, upon a petition of its corporators to the General Assembly for a charter that should authorize the company to lay the tracks of a horse railroad between specified points on the outskirts of the plaintiff borough on the north and south respectively, and between specified points on the outskirts on the east and west respectively, and mentioning by name the streets through which the company desired the right to pass. The charter granted upon this petition specified certain streets through which the tracks might be laid, omitting Summer street, which had been named in the petition, and including two streets that had not been named in it. Among the streets which were not named in either the petition or the charter was Bedford street, to which alone the present controversy relates. The grant of the right to lay tracks in the streets of the borough was as follows :— “ Commencing at Summer street, corner of Liberty Place, and running westward over Liberty Place to Washington Avenue; thence over and upon Washington Avenue to Broad street; through Broad street to Atlantic street; thence the whole length of Atlantic street; also from the intersection of-Main and Atlantic streets over Main to Elm street; thence over Elm street to Shippan Road, so called ; thence over Shippan Road to the south end of Shippan Point; also from the intersection of Main and Atlantic streets westward over Main street to Mill River ; also from Atlantic street over Cottage Place to South street, and from thence southerly over South street across the bridge thereon to the south end of South street; and over and across any highway within any of the points of commencing or termination aforesaid.” The statute (Gen. Statutes, § 392), provides that no petition for the incorporation of a railroad company shall be heard by the General Assembly, unless public notice shall have been given by advertisement in some newspaper published in the county, designating the intended route of such road; and § 393 provides that every charter of a horse railroad company shall “ specify the streets or highways through which it may pass, or otherwise designate the route on which it may be authorized to be made.” Under the former section of the statute the petitioners for the charter had published in a Stamford newspaper, on the 9th of November, 1885, the following notice:— “ Notice is hereby given that the undersigned will apply to the General Assembly of this state at its session on the Wednesday after the first Monday of January, 1886, for the re-incorporation of the Stamford Horse Railroad Company. Commencing on Summer street at or near Liberty' Place, running over Summer to Broad and to Atlantic; thence the whole length of Atlantic. Also from the inter-* section of Main and Atlantic, over Main to Elm to Shippan Road, so called, over said Shippan Road to south end of Shippan Point. Also from said intersection of Main and Atlantic over Main to Mill River. Dated at Stamford, this 9th day of November, 1885.” The defendant, claiming to act under the provisions of its charter, has laid its tracks as follows :—Commencing at the corner of Liberty Place and Summer street in the town of Stamford and outside of the limits of the borough, thence through and upon a continuous highway known as Summer street and Hoyt street to a highway known as Bedford street, thence along Bedford street to the north line of the borough, and thence on, through and upon Bedford street, to a point about fifty feet from the junction of Atlantic, Broad and Bedford streets in the borough. The defendant claims to have the right to continue laying its tracks over this fifty feet on Bedford street to Atlantic street and there to connect with its tracks already laid on Atlantic street, and intends to do so. The length of Bedford street within the borough is eighteen hundred and eighty-nine feet, and its width is forty feet on the northern line of the borough, and nearly the same width through three fourths of its length in the borough, but is thirty-one feet in width at its termination at the point of junction with Atlantic and Broad streets. When the railroad company commenced work on Bedford street within the limits of the borough, the board of warden and burgesses immediately requested the borough attorney to advise it whether the company had the right to construct its road on Bedford street, and the borough attorney immediately informed J. B. Curtis, Esq., a director and the attorney of the railroad company, that the warden and burgesses had taken such action, and their action was published during the same week in the Stamford Advocate, a weekly paper published in Stamford; but the company continued the construction of its road and had expended about $1,500 when the warden and burgesses, immediately upon receiving the report of the borough attorney, commenced the present action. The cost of the line from the stables on Liberty Place to the intersection of the line on'Atlantic street is'.$3,800, and the cost of that portion of the line on Bedford street within the borough limits is $1,500. The warden and burgesses had no knowledge that the company intended to come down Bedford street within the borough limits until it commenced work on Bedford street within the borough. The company has laid its tracks in the borough and in Bedford street with a rail called the T rail. The track is constructed by laying ties crosswise of the street about five feet apart, the bottom of the ties being fourteen inches below the surface of the street. Upon each end of these ties wooden stringers, six inches in height, are laid lengthwise of the street, and upon the top of the stringers the rails, which are three inches in height, are laid and fastened; the top of the rail being left, at the completion of the track, on a level with the surface of the street. In a paved street, where the pavement is laid close to the rail on either side, and the pavement is kept in thorough repair, so as to be fully as high as the top of the rail, a horse railroad may be maintained so as to be of very slight inconvenience to public travel. Any horse railroad in any street is some impediment to the free and safe use of the street for travel with carriages. In an unpaved street, where the earth is liable to be worn away by use or washed away by the action of water so as to leave the rail exposed above the level for a part or the whole of its height, a horse railroad .track becomes a serious and menacing obstacle to travel. The streets iu the borough of Stamford aré not paved and are much used. The soil is a gravelly loam, easily displaced, and pervious to the action of water. The track as now laid in Bedford street is so liable to become exposed, and to render the street defective and unsafe to travelers, that accidents are very liable to happen therein. - Upon these facts the case was reserved for the advice of this court.