Abendroth v. Town of Greenwich

29 Conn. 356 | Conn. | 1860

Sanford, J.

By statute, title 24, chap. 1, it is provided that the several towns in this state shall make, build, and keep in good and sufficient repair, all the necessary highways and bridges within the limits of such towns, except when it belongs to some particular person or corporation to maintain such highways or bridges ; and that, when it is necessary to build or repair any bridge across any river or stream of water which is the boundary or dividing line between any towns, it shall be the duty of such towns to build and keep in repair every such bridge, and each town shall pay an equal part of the expense of building and repairing the same, unless it shall be otherwise agreed by such towns. And by the same statute provision is made for the enforcement of those duties. But in relation to the construction or maintenance of bridges across streams of water which form the boundaries or dividing lines between this state and the states adjoining, the statute is entirely silent. The powers, duties and liabilities of towns in regard to highways and bridges, originate in, depend upon, and are limited by, the statutes. And as the legislature has delegated to the towns no authority to fix the location, so it has imposed upon them no obligation to provide for the erection or support, of such bridges.

In this action the plaintiff claims compensation for the erection of a bridge across Byram river, which river at that place forms the boundary between this state and the state of New York. And if it be true, as we have said, that there is no obligation to erect such a bridge imposed upon our towns by law, then it is difficult to discover any ground upon which the plaintiff’s suit can be sustained.

Towns, like other corporations, can exercise no powers except such as are expressly granted to them, or such as are necessary to enable them to discharge their duties and to carry into effect the objects and purposes of their creation. Being required by law to erect and maintain all necessary bridges within their limits, “ except such as belong to some particular person or corporation to maintain,” and empowered, (Rev. Stat., tit. 3, § 31,) to lay aqd collect taxes sufficient to defray all lawful and necessary expenses by them incurred, they are enabled to perform that important duty. But the expense of building a bridge which the town is under no legal obligation to construct, is not a necessary expense, and no money can be raised or legally appropriated by the town for the payment of such expense.

The town of Greenwich had no power to make the contract upon which the plaintiff relies. Such power is no where expressly given, and its exercise was unnecessary to enable the corporation to discharge any legal duty or obligation, or to carry into effect any of the objects or purposes for which the corporation was created. The subject was one of which the town had no right to take cognizance, and its action in relation to it was of no binding force whatever. In the language of Mr. Justice Wilde, in the case of Parsons v. Goshen, 11 Pick., 399, “ this limitation upon the power and authority of towns to enter into contracts and stipulations, is a wise and salutary provision of law, not only as it protects the rights and interests of the minority of the legal voters, but as it may not unfrequently prove beneficial to the interests of the majority, who may be hurried into rash and unprofitable speculations by some popular or delusive excitement, to the influence of which even wise and considerate men are sometimes liable.” The principles upon which we proceed in the determination of this point are frilly recognized in that case, and also in those of Stetson v. Kempton et al., 13 Mass., 272, Bangs v. Snow, 1 id., 181, and Hodges v. Buffalo, 2 Denio, 110; and by our own court in the case of New London v. Brainard, 22 Conn., 552.

But there are other grounds also upon which the judgment of the superior court must be affirmed. If the vote of the town was, as the plaintiff claims, an undertaking to pay him the money which he seeks to recover in this suit, there was no consideration for such an undertaking. The bridge had been built by the voluntary contribution of individuals, without any request from the town. Its erection conferred no benefit upon the corporation, because it relieved the corporation from no legal duty or obligation. The bridge might be, and probably was, very convenient and useful to many of the inhabitants of Greenwich, in common with many other citizens. It may be, indeed, that a bridge at that place was a matter of “ common convenience and necessity,” so that had it been within the limits of the town, the town could have been compelled to build it, and yet from the building of it the corporation, the defendant in this suit, would derive no legal benefit or advantage, because it was not a bridge which it was the duty of the corporation to provide. As well might an ecclesiastical society, or a school district, be charged upon their undertaking by a major vote to pay for this bridge, because some of the members of those corporations enjoyed the facilities and conveniencies which such bridge afforded.

If this bridge was needed for the public accommodation it was the business of the state and not the town to provide for its construction. The state, therefore, if any one, received the benefits arising from the erection of the bridge.

The construction and support of highways and bridges is by law imposed upon the respective towns in which they are situated, not because the towns or the inhabitants thereof derive any special or peculiar benefits therefrom, but because it seems to be the most equitable and convenient mode of parcelling out that portion of the public burdens amongst those who in some way, either mediate or immediate, must bear them.

Again, the vote upon which the plaintiff relies for his recovery, was passed in answer to the plaintiff’s proposal to convey the bridge, and certain highways leading to it, to the town, and that proposal was the consideration for, and inducement to, the passing of the vote. But the plaintiff neither averred in his declaration, nor proved upon the trial, that he ever made or offered, or had the power to make, the proposed conveyance. He did indeed tender to the selectmen a deed purporting to convey to the town that part (that is, one-half) of said bridge that lies in this state, and the selectmen refused to receive it. But the proposal was to convey “ the bridge ”— that is, the whole bridge — and certain roads leading to it; so that the deed tendered was not such an one as the plaintiff proposed to make, and for that reason, if for no other, the select men were justified in refusing to accept it. Besides, the plaintiff offered no evidence of any title to the bridge. And no inference can be drawn from any thing appearing in the motion, that he had any title in himself, or any power from any one who had, to make such conveyance. On the contrary, we think the natural inference from the facts found by the superior court is that he had no such title or authority. To “ convey ” real estate is, by an appropriate instrument, to transfer the legal title to it from the present owner to another. But however appropriate for the purpose the deed may be upon its face, such deed is of no avail to prove the conveyance of a title, or the tender of such conveyance, unaccompanied by proof of its execution by the real owner of the property, or some one duly authorized to execute it in his behalf. The failure of the plaintiff, therefore, to prove that he was the owner of the bridge which his deed purported to convey, was a failure to show the performance of a condition precedent on which his right of action against the town depended.

Several other questions were presented by the counsel in their arguments before us, but as our determination of those already stated will dispose of the plaintiff’s case, we refrain from their discussion.

A new trial is not advised.

In this opinion the other judges concurred.

New trial not advised.