An order of the railroad commissioners for the elimination of a highway grade-crossing is not per se a "taking" of land, nor does it give the adjoining proprietor a present right of action for damages to his premises because of the contemplated change in the grade of the street. Whenever an action appears upon the face of the complaint to have been prematurely brought, the defect may be taken advantage of upon demurrer. In an action at law the plaintiff's case can be supported only on the facts as they existed when it was begun.
ANDREWS, C. J.
The sixth paragraph of the complaint avers "that by reason of said order of said railroad commissioners and of said judgment of said Superior Court, the property and estate of the plaintiff has been taken by the defendants for the purpose of said bridge abutments, embankments and approaches, to the great damage of the plaintiff." There is in the complaint no averment that any property of the plaintiff has been taken or in anywise injured, so that therefrom he has suffered damage other than is set forth in this paragraph. There is no averment that either of the defendants had taken any step towards the carrying out of the said order; and we know from the supplemental complaint that no such step was taken until nearly ten years after the suit was commenced.
This order was not itself a taking of land. It did not authorize the "taking" of any land anywhere. It did not contemplate the interference with any land outside the limits of Chapel street. It did contemplate and command a change in the grade of that street. But such change in the grade was not then made; and when made it was not the "taking" of land. The damages to which a party is entitled by reason of the change in the grade of a highway, accrue not because any land has been taken, but because his land outside of the highway which has not been taken has been injured. General Statutes, § 2703; Holley v. Torrington, 63 Conn. 426.
Although the order was an authoritative one, and one which the defendants would in all probability be compelled to perform, it was not in itself a damage to the plaintiff. Every complaint in an action at law must show a cause of action; that is, it must show a present right to have the relief claimed. If the right to have the relief claimed has not yet come into existence, then the action is prematurely brought. This suit was prematurely brought. It appeared by the complaint itself that at its date the cause of action had not accrued to the plaintiff. A demurrer was a proper pleading to take advantage of that defect. Gould's Pleadings, Chap. V, § 138; Smith v. Jewell, 71 Conn. 473; Bailey v. Bussing, 29 id. 1, 6.
After the demurrer to the original complaint had been sustained the plaintiff filed an amended complaint, which he styled an amended and supplemental complaint, and a little later an amendment to that one. The defendants objected to these amendments, but the court pro forma overruled the objections and allowed them to be filed. Afterwards the defendants moved that both these amendments be stricken from the record. This motion was pro forma overruled. The defendants then demurred to both these amendments.
These amendments do not, either of them, set forth any acts of the defendants, or any fact by reason of which the plaintiff has suffered damages, other than such acts and facts as have happened since this suit was brought. This is an action at law. In such an action the plaintiff's case can be supported only on the facts as they existed when it was brought. Woodbridge v. Pratt Whitney Co., 69 Conn. 304-334. An independent cause of action which does not mature until after the commencement of the suit cannot be made the basis of an additional count or supplemental pleading in an action at law, even though it sprung out of the transaction set forth in the original pleadings. Goodrich v. Stanton, 71 Conn. 418, 419.