Case reserved from superior court, New Haven county; Silas A. Robinson, Judge.

The city of New Haven changed the grade of one of its streets, and made an assessment of benefits and damages. George B. Martin, as receiver of the New Haven Steam Sawmill Company, and John S. Cannon, as executor, etc., of William P. Dickerman, deceased, took separate appeals to the superior court, which were referred to a committee. The court accepted the committee's report, and reserved all questions of law for the consideration of the supreme court. Report of committee sustained, and judgments for damages in accordance therewith ordered to be entered in superior court.

These two cases depend on the same facts. Each is a complaint or application to the superior court in the nature of an appeal from an assessment made by the bureau of compensation of the city of New Haven, and approved by the common council of that city, in assessing damages and benefits to the plaintiffs by reason of a change of the grade in Chapel street, a highway in that city. The first-named plaintiff is the owner of a tract of land on the south side of said Chapel street and east of East street, and which extends easterly more than 800 feet from said East street. The second-named plaintiff is the executor of, and trustee under, the last will of William P. Dickerman, late of New Haven, and, as such executor and trustee, he is the owner of a tract of land in said city of New Haven on the north side of said Chapel street and easterly of East street, and extending more than 800 feet from said East street. The "freight branch" of the New York, New Haven & Hartford Railroad Company is laid across said Chapel street, and across the lands of each of the plaintiffs. The facts appearing in the record of these cases, somewhat condensed, and stated historically, are these: On the 6th day of June, 1886, the railroad commissioners issued their order of notice, in which they stated, "It having been represented to us that public safety requires an alteration of the highway in the city of New Haven known as 'Chapel Street,' now crossed at grade by the 'freight branch' track of the New York, New Haven & Hartford Railroad Company, and that the same shall be so changed as to be carried over the track;" and then followed their order of notice to all persons in interest and to all the parties in these suits that they appear and be heard on said matters on the 17th day of June then next. And the commissioners thereupon, on said last-named day, made their finding that said order of notice was served, and that on said day all the parties appeared and were fully heard, and made their order in the premises like this: "And now, after such hearing, we are of the opinion that public safety requires an alteration of said highway, and we do deem it best and determine that said highway or Chapel street be so altered as to cross

over said railroad by a bridge, instead of crossing at grade, as at present; the height of said bridge above the rails to be not less than 15 feet in the clear; and, in order that the grade of the approaches may be as light as possible, we do direct that the tracks at said crossing be lowered twenty (20) inches. The work of lowering said tracks to be done by the said railroad company, and all the other work incident to said alterations, including the building, making, and construction of the bridge, abutments, and approaches, to be done and performed by said city in general accordance with the plans on file in this office marked, 'Proposed Bridge at Chapel street over the N. Y., N. H. & H. R. R. New Haven, Ct., June 17, 1886. Albert B. Hill, City Engineer.' All of said alterations to be made and completed within one year from the date of this order, and, including the land damages, if any, incident to said alterations, to be at the joint expense of said city and railroad company, each in the first instance to pay the cost of the alterations ordered to be made by it, and the land damages as they may be assessed. And on the completion of said alterations and the payment of said costs and land damages, if it shall appear that the amount paid by the city is in excess of that paid by the railroad company, then said company to pay said city one-half of said excess; but, if it shall appear that the amount paid by said company is in excess of that paid by said city, then said city to pay said company one-half of said excess." There was an appeal from said order of the railroad commissioners taken to the superior court, and the said court, on the 18th day of November, 1887, rendered its judgment upon the matters appearing in said appeal, to wit: "This court, having re-examined the question of the propriety and expediency of the order appealed from, finds that public safety requires the alteration of the said highway, and that said alteration is a matter of public convenience and necessity. Whereupon it is adjudged that said order of the railroad commissioners be, and hereby is, modified so that said order, when modified, shall read as follows, and the same is made an order of this court." The order so made was word for word the order made by the railroad commissioners, except that the time was two years, instead of one year, within which the work was to be done and completed. Neither the city of New Haven nor the said railroad company performed or took any measures towards the performance of the said order within one year, or within two years, nor within any reasonable time thereafter. On the 6th day of November, 1896, the superior court in and for the county of New Haven, upon the complaint of William H. Williams, Esq., attorney for the state in said county, issued a peremptory writ of mandamus to the said city and the said railroad company, requiring and enjoining them to comply with the said order of the railroad commissioners so affirmed by

the said superior court. The mandatory part of said writ is in these words: "Therefore, that due and speedy justice may be done in this behalf, it is hereby required and enjoined of you, the said city of New Haven, and of you, the said New York, New Haven & Hartford Railroad Company, that you, and each of you, do forthwith comply with and carry out the directions and provisions of said modified and confirmed order, and erect and construct said bridge, abutments, embankments, and approaches thereto, and pay all the expenses thereof, including land damages, if any, in the manner and according to the terms and conditions of said modified and confirmed order of the railroad commissioners, and that you, and each of you, obey and conform in all respects to said order." This peremptory order was served on both these defendants on the 7th day of November, 1896. As soon as was practicable after the service of that writ, the city began preparations for doing the work therein commanded, making plans and engaging contractors and workmen. On the 12th day of December, 1896, it was ordered by the common council "that the board of public works take immediate measures for the construction of the Chapel Street Bridge in conformity to the mandamus of the superior court as promulgated," and from time to time other orders respecting the same matter were passed. On the 12th day of May the board of public works, having been ordered to cause a survey of Chapel street to be made, reported such a survey, showing the grade and line in Chapel street in conformity with the plans for said new bridge, which plans were adopted, and on the same day the bureau of compensation was ordered to assess the benefits and damages to the owners of all property affected by the change of grade between East street and a point 800 feet east of East street on Chapel street, and by the construction of the bridge over the railroad tracks, and the retaining walls, in accordance with the plans adopted and on file in the office of the city engineer. On the

day of the bureau of compensation reported that they had attended to said duty, had given notice to all such persons to appear and be heard, that all persons had been fully heard, and that they had assessed to each of the plaintiffs herein the damages and benefits to be equal. This report was accepted by the common council. From this action by the city the present complaints or appeals were taken.

The complaints in the two cases are, in substance, the same: Each, after describing the land belonging to the plaintiff therein, contains averments which are identical in both,-in these words: "That said city of New Haven has changed the grade of said Chapel street in front of said land and property of your applicants and raised the same about 16 feet in height at the highest point, and has constructed a bridge over said railroad track of said New York, New Ha

ven & Hartford Railroad Company, and built retaining walls, erected masonry and earth works occupying the whole of said Chapel street in front of your applicants' property, and wholly obstructing and preventing access to said Chapel street from your applicants' said property. That the bureau of compensation of said city of New Haven assessed and determined that the damages and benefits accruing to your applicants, by reason of said change of grade between said East street and a point 800 feet east of East street on said Chapel street, and of the construction of said bridge over said railroad track, and said retaining walls, were equal, and said bureau duly made its report of the same. That afterwards the court of common council of said city accepted said report, passed the order, and laid said assessment, and on the 6th day of October, 1898, the mayor of said city duly approved of said action of said court of common council. That the damages to accrue to the applicants by reason of the change of grade, etc., are greatly in excess of any benefits that may accrue to them by reason of the same, and said property of the applicants has been specially damaged thereby. Your applicants are aggrieved by said order of said court of common council in accepting said report * and in laying said assessment as aforesaid, and in determining that the damages and benefits accruing to your applicants are equal." The applicants prayed the court itself to assess and determine the amount of damages and special damages to their property by reason of said change of grade, etc. The answer by each defendant was the same, and was in two defenses. The first admitted most of the complaint. It denied that the whole of Chapel street was taken, denied that the damages were greater than the benefits, and that the property of the plaintiffs had been specially damaged. The second defense was like this: (1) The change of grade, construction of bridge, and building of retaining walls described in the application for relief were all made and done under and in pursuance of a certain order of the railroad commissioners of the state of Connecticut, dated June 17, 1886, a copy of which is hereto annexed, marked Exhibit A, and a judgment of the superior court, dated November 18, 1887, affirming said order, of which a copy is hereto annexed, marked Exhibit B. (These are the order of the railroad commissioners and the judgment of the superior court hereinabove set out.) (2) The assessment whereby the applicants claim to be aggrieved was made by the court of common council of the city of New Haven for the purpose of ascertaining the amount of benefits and land damages, if any, which might be due from or to any party by reason of the construction of said bridge and approaches pursuant to said order and judgment. The replication by the plaintiffs was in each case a denial of the second defense. Both these cases were re

ferred to the same committee, who heard both cases together, and made reports finding the issues in each case for the plaintiffs, and setting forth all the facts which appeared on the trial. These reports differ only so far as it is made necessary by the fact that one of the plaintiffs asked damages for land on the on the north side of Chapel street, and the other plaintiff for damages to land on the south side of the same street. Each of the defendants remonstrated against the report in each case, and there was a reply to these by the plaintiffs. The cases were thereupon reserved for the consideration and advice of this court.

Henry Stoddard and John W. Bristol, for plaintiffs. George D. Watrous, for defendant New York, N. H. & H. R. Co. William H. Ely, for defendant city of New Haven.

ANDREWS, C. J. (after stating the facts). The record in these cases shows that the city of New Haven changed the grade of Chapel street, a much-frequented highway in that city. The report of the committee finds that each of the plaintiffs was damaged by that change of the grade of said street to a very substantial amount. And each of the plaintiffs in the cases seeks to recover his own damages. The defendants say that whatever they or either of them did in or about the changing of the grade in the said street they did pursuant to, and by reason of, the order made by the railroad commissioners of the state, modified, approved, and affirmed by the superior court, directing them to make such change of grade, and coerced thereto by a writ of peremptory mandamus lawfully issued and duly served upon them; that, in whatever they did in the matter, they acted in obedience to the command of the sovereign power of the state in the performance of a police duty; and that they are not liable to the plaintiffs for any damages which the plaintiffs may have suffered by reason of their performance of the duty so commanded. The plaintiffs, in reply to this claim of the defendants, say: First, that the defendants did not act in pursuance to the said order of the railroad commissioners, but proceeded of their own motion, and therefore are liable for the damages they have caused; and, second, that, even if they did act pursuant to the order of the said commissioners, they are equally liable for the damages made so by the laws of the state. It is upon the correctness of these claims that the right of the plaintiffs to recover depends. Moreover, these claims embrace the substance of all the questions made by the remonstrance to the committee's report. In that series of events which resulted in the change of the grade in Chapel street, the initial step was the proceeding by the railroad commissioners. that proceeding all persons supposed to be interested were made parties by the notice given by the commissioners. From that proceeding issued the order that the change in

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the grade of Chapel street should be made, directing the city and the railroad company to do the work, and apportioning the payments to be made. Then followed the judgment of the superior court, and later the peremptory mandamus. Both these last-named proceedings were based upon the order made by the commissioners, and commanded the performance by the defendants of the work therein ordered by the commissioners to be done. In the light of these successive orders, decrees, and commands, it is impossible to come to any other conclusion than that "the change of grade, construction of bridge, and building of retaining walls described in the complaint were all made and done under and in pursuance of the said order of the railroad commissioners." That the work was not done within two years after the order was made, and that the bridge is a trifle wider than the layout of the street, were immaterial variances, which should have been disregarded.

The order here in question was one designed to remove a dangerous grade crossing in Chapel street, in the city of New Haven. Every grade crossing is a menace to human life. The legislature, in enacting those statutes which empower the railroad commissioners to order the removal of such crossings, and the commissioners in making such orders, are exercising the police powers of the state for the preservation of life. The extinction of grade crossings when ordered by the legislature is within the police powers of the state. Town of Westbrook's Appeal, 57 Conn. 104, 17 Atl. 368. An order made pursuant to such legislation is an exercise of the police powers. The defendants say that, because they acted pursuant to an order of the state in the exercise of its police powers to abate a nuisance, they are not liable in damages to the plaintiffs for any injury that in consequence of their act may have been done to the plaintiffs' property. They say that, if property is injured or destroyed by the state or the agents of the state in the lawful execution of a police regulation, the owner cannot recover for such damage; that it is damnum absque injuria. As a general statement, we suppose this to be correct. It is very likely that there is no common-law liability upon the defendants to pay damages to the plaintiffs. But the legislature may, and often does, authorize, or even direct, acts to be done which are harmful to individuals, and which, without such authority, would render the persons doing the act liable to pay damages. If, however, in such cases, the statute authorizing or directing the act to be done is one which the legislature has the power to pass, the acts are lawful, and the party doing them is not liable in damages, unless the power has been exceeded. But in such statutes there may also be given to those who suffer consequential damages the right to recover therefor, and, when so given, the right to recover compensation is a creature of stat

ute, and the injured person may recover accordingly. Transportation Co. v. Chicago, 99 U. S. 640; Rowe v. Bridge Corp., 21 Pick. 344; Darlington v. Mayor, etc., 31 N. Y. 164; Allegheny Co. v. Gibson, 90 Pa. St. 397. The legislature, having the power to order the act to be done, may provide compensation for the property injured by the doing of the act, in such mode and to such extent as it deems wise. Instances of such legislation are very numerous. The acts of 1875 and 1880, authorizing the board of agriculture or its commissioners to cause animals supposed to be infected by some contagious disease to be killed, and providing compensation to the owner of such animals, are statutes of this kind. See, also, Gen. St. 1875, pp. 18, 19; Acts 1880, c. 73. Also, Acts 1885, c. 106, and Acts 1887, c. 70. And, in all cases where compensation is so provided, the party doing the act which causes the damages must have the damages ascertained, and. pay them; otherwise, the party injured may bring an action therefor. Holley v. Town & Borough of Torrington, 63 Conn. 426, 28 Atl. 613; Cullen v. Railroad Co., 66 Conn. 226, 33 Atl. 910. Chapter 100 of the Public Acts of 1884 is also a statute of the same kind. It is as follows: "The railroad commissioners may when in their opinion public safety requires an alteration of any highway crossed at grade by a railroad, after a hearing had, upon such notice as they shall deem reasonable to the railroad company owning or operating said railroad and to the selectmen of the town, mayor of the city or warden of the borough within which said highway is situated and to the owners of the land adjoining said crossing, order such alterations in such highway as they shall deem best, and shall determine and direct by whom such alterations shall be made, at whose expense and within what time." This act was an amendment of a similar act passed the previous year. See Acts 1883, c. 107, § 3. And this latter was an extension of an act passed in 1876 (Laws 1876, c. 36) and Gen. St. 1875, p. 232. This was the statute in force when the order made by the railroad commissioners in this case went into effect. Acting upon the authority so given them, and as appears from their recital, upon their own opinion that the public safety required it, the railroad commissioners made the order in the present case. They ordered the grade crossing in Chapel street to be changed, and that in the changing of such crossing the street be raised 16 feet for some distance in front of the land of the plaintiffs. And they also ordered all of the said alterations to be made and completed within two years from the date of the order, and "including the land damages, if any, incident to said alterations, to be at the joint expense of the said city and railroad company." A part of the land damages "incident to said alterations" was the damages done to the present plaintiffs by raising the grade of the highway

to which their lands were adjoining. This was a damage which the city was, by law, bound to pay to them. Gen. St. 1875, p. 236; Acts 1880, c. 73. The order of the commissioners provides for the payment of these damages and at whose expense. The defendants are therefore under a statutory liability to pay to the plaintiffs their damages; the amount to be apportioned between the defendants as is specified in the order of the railroad commissioners. The city of New Haven, recognizing its liability under the said order of the railroad commissioners, after the work was completed directed the bureau of compensation to assess the benefits and the damages to accrue to all parties interested by the change of grade in Chapel street. That board acted in the premises, and made its report finding the damages and benefits to each of the plaintiffs equal. The present complaints are each an appeal from that assessment. The committee of the superior court has found that the damages to the plaintiffs largely exceed the benefits to them. We think the defendants are, by the statute, made liable to pay the amount of the damages so ascertained. The superior court is advised to accept the reports of its committee, and to render judgment in favor of the New Haven Steam Sawmill Company in the sum of $22,762.84, and in favor of John S. Cannon, executor, etc., in the sum of $12,444.95. The costs in this court will be taxed in favor of the respective plaintiffs. The other judges concurred.

firmed by the board of common council,- | finding the benefits and damages to the plaintiff's land by reason of a change in the grade of Chapel street to be equal. The report of The report of the said bureau from which the appeal in this case was taken is the same from which the appeals in the two cases just considered were made (44 Atl. 228, 229), but refers to land situated on a different part of the same street. The case was tried to a committee, whose report sets forth the facts as follows: "The circumstances under which this action is brought are as follows: The city of New Haven raised the grade of the highway known as 'Chapel Street,' between East street and Mill river, beginning at the easterly curb line of East street at the old grade; thence easterly about 200 feet, rising to the crown of a new bridge over the freight tracks of the New York, New Haven & Hartford Railroad Company, where the present grade is 16 feet higher than the former grade; thence gradually falling to a point 800 feet east of the east line of East street, where the present grade is 5 feet 7 inches above the former grade; thence, about on a level, and about the same height above the former grade, to a new drawbridge over Mill river. In constructing said bridge and approaches, and in changing said grade, the city erected on each side of Chapel street perpendicular stone retaining walls in front of the premises of the plaintiff, which walls are 5 inches higher than the present grade of the street above given. Said walls vary, except for a short distance next adjoining East street, from 6 to 16 feet high, and are surmounted on each side of the street by an open iron railing about 4 feet high. Between said walls Chapel street is filled in solid across its full width to the new grade above given. The frontage of the New Haven Sawmill Company thus affected is 1,084 feet. Said change of grade is attributable to two distinct public improvements: The abolition of a grade crossing of the freight tracks of the New York, New Haven & Hartford Railroad Company over Chapel street, and the erection of a new drawbridge, taking the place of the old one, over Mill river. The original plans and specifications for the abolition of said grade crossing contemplated that the new grade of Chapel street should run out into the former grade at a point 800 feet east of the east line of East street; but subsequently the city of New Haven, for the purpose of providing a level approach to the new Mill River Bridge, ordered an additional raise in the grade of Chapel street, extending back to a point 500 feet east of the east line of East street. Between said 500-foot point and said 800-foot point the total change of grade of Chapel street is therefore due to the Mill River Bridge grade being superimposed upon the grade due to the abolition of said grade crossing. Said grade crossing was abolished in consequence of an order of the railroad com

missioners dated July 6, 1886, of which a copy is in evidence, and in consequence of the following additional proceedings: Said order was appealed from by the New Haven Steam Sawmill Company, and was amended and confirmed by a judgment of the superior court dated November 18, 1887, of which a certified copy is in evidence. Said order was again amended by the railroad commissioners December 23, 1887, and a copy of said amended order is in evidence. On November 6, 1896, a writ of peremptory mandamus was issued from the superior court, commanding the city of New Haven and said railroad company to obey said order and judgment. The Mill River Bridge improvement was constructed in pursuance of certain votes of the court of common council of the city of New Haven, copies of which are in evidence. The court of common council of the city of New Haven assessed damages and benefits equal to the plaintiffs' property on account of each of said improvements. George B. Martin is receiver of the New Haven Steam Sawmill Company, and as such appeals from the order of the court of common council assessing damages and benefits equal on account of said Mill River Bridge grade. I find that said New Haven Steam Sawmill Company and George B. Martin, as receiver thereof, are the owners of the premises described in the complaint. Taking first that part of the premises lying east of the 800-foot point, and in front of which the change of grade already described is entirely attributable to the Mill River Bridge improvement, I find that said premises consist of a tract of flats lying between high and low water mark, 334 feet on Chapel street, and, excepting the easterly 50 feet, some 270 feet deep on the average. In changing the grade of Chapel street the city of New Haven took and appropriated for the purpose of said Mill River Bridge improvement a strip of the plaintiff's premises about 4 inches in width along the entire length of 334 feet. Plaintiffs claimed damages for encroachment and for injury to the value of the premises. I find that the plaintiffs were damaged by the encroachment above described in the sum of $33.40. I find that prior to the change of grade the market value of the above described premises was $45 a foot on Chapel street. The retaining wall in front of said premises is about 6 feet higher than the former grade of Chapel street, and materially obstructs the use of the water privilege in connection with Chapel street, and increases the cost of improving the flats. I find that the premises lying between the 800-foot point and the harbor line have been specially damaged by the Mill River Bridge change of grade, over and above all benefits, at the rate of $15 a foot, or $5,010, not including damage for encroachment already found. If the court shall find, upon the true construction of the said order appealed from, the damages to be recovered in this action in