Bethel Redding Lime Co. v. New York, N. H. H. R. , 82 Conn. 135 ( 1909 )

The appellant operates a railroad, known as the Bethel Branch, running straight from a station in the town of Bethel to Hawleyville in the town of Newtown, for a distance of about six miles. It also operates a railroad, known as the Danbury Branch, from the Bethel station to a station in the city and town of Danbury, and a railroad from thence to Hawleyville. The Bethel Branch is one side of a triangle, of which the other sides are the Danbury Branch and the section of the appellee's Western Division, between Danbury and Hawleyville.

General Statutes, § 3713, provides that the directors of any railroad company on whose road there is a grade-crossing, may petition the railroad commissioners for "an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing and the substitution of another therefor, not at grade, or the removal of obstructions to the sight at such crossing, and praying that the same may be ordered; whereupon the commissioners shall appoint a time and place for hearing the petition, and shall give such notice thereof as they judge reasonable to such petitioners, the company, the municipalities in which such crossing is situated, and the owners of the land adjoining such crossing and adjoining that part of the highway to be changed in grade; and after such notice and hearing, the commissioners shall determine what alterations, changes, or removals, if any, shall be made and by whom made." General Statutes, § 3718, provides that the decision on any such petition "shall be communicated to the petitioners and to all persons to whom notice of the hearing on said petition was given, within twenty days after the final hearing; and any person aggrieved by such decision, who was a party to said proceeding, shall have the same right of appeal therefrom as is given by § 3747 concerning appeals from decisions relating to depots." The right of appeal given by General Statutes, § 3747 is one in favor of "any person aggrieved by any order of the railroad commissioners, upon any proceeding relative to the location, abandonment, or changing of stations to which he was or ought to have been made a party."

The appellant is a corporation of this State located and having its principal place of business in Bethel, and avers that it was a party to the proceedings before the railroad commissioners; that their final order is "improper, inexpedient, illegal, and not in conformity with the statutes in such cases provided"; and that it is aggrieved thereby. It is not claimed that it owns land adjoining any of the railroad crossings mentioned in the petition to the commissioners, or adjoining any highway the grade of which might be changed by their order.

But, while not one of those whom a petitioner for the removal of a grade-crossing is required to make a party, it in fact appeared before the railroad commissioners at the time and place set for the hearing. Their records recite this fact, and the appellant insists that they also state that it was fully heard. The phrase on which it relies, "and said parties were fully and finally heard on said last mentioned date," is susceptible, grammatically, of two constructions: one making it apply only to the statutory parties, that is, to the appellee and the two towns, and the other making it apply both to them and the appellant. But there is no reason apparent why the appearance of the appellant should have been thus explicitly recorded, unless it was thought by the commissioners important to show that it had been accorded a "day in court", and was a party to their final order. It is obvious that it may have had important interests to protect. It may have been the proprietor of one of the three industries located on the line of the "Bethel Branch." It is to be presumed that sufficient cause was shown to the commissioners to induce them to recognize its appearance. They were about to hear an application of an unusual character. Their approval was sought for removing sixteen grade-crossings by the method, not of altering the grade either of railroad or highway, but by lessening the use of the crossings for railroad purposes, while maintaining the tracks precisely as they were. Their use for through traffic was to be discontinued, but as a stem for spur tracks their use was to be maintained. Under these circumstances, it was, to say the least, within the power of the commissioners, to hear any one whose pecuniary interests would be affected by such a change in the operation of the railroad. That the nature of the interest of a party so affected, and who was allowed to appear, was not made a matter of record, cannot lessen his rights.

That the appellant became fully a party to the proceedings before the railroad commissioners therefore sufficiently appears; and this established its right of appeal under General Statutes, § 3747.

We intimate no opinion as to whether the case presented to the commissioners by the appellee falls within the provisions of General Statutes, § 3713; nor as to whether the appellant had a right to appear before them as a party, by virtue of its location in the town of Bethel.

The motion to dismiss filed in the Superior Court contained an averment that, in the month following the order appealed from, the railroad company brought a second petition before the commissioners, alleging that it had failed to include in the list of grade-crossings contained in the former petition another on Greenwood Avenue in Bethel, and praying for their approval of its elimination; that an order to that effect was passed, after notice to the company and the town, which order was similar in terms to the former one, as to the mode of its elimination; and that no appeal had been taken from such order.

These facts had no place in such a motion, the office of which is not to allege new matter, but to take advantage of objections already apparent on the face of the record.

There is error, and the cause is remanded with instructions to overrule the motion to dismiss.

In this opinion the other judges concurred.