29 Barb. 396 | N.Y. Sup. Ct. | 1859
The referee has found that all the material allegations in the complaint are true, and upon such facts he decided, as matter of law, that the complaint should he dismissed.
The object of the action is to obtain a perpetual injunction restraining the city of Buffalo from entering upon certain premises of the plaintiff, and opening a street thereon. The plaintiff, and those from whom his title is derived, had been
Enough of the allegations of the complaint are here presented to raise the questions upon which the decision of the referee was made, and the questions argued upon the appeal. It is not, however, quite apparent upon what ground the re
It is declared by the' constitution (art. 1, § 6) that 'private property shall not he taken for public use, without just compensation. In the present case, the private property was worth $1200, and the commissioners have only allowed to the plaintiff, the owner, one dollar, and the defendant insists upon its right to take the property for public use, for this sum. It cannot be claimed that there has been any compliance with the provision of the constitution referred to, nor with the charter of the city of Buffalo, under which these proceedings were had. Yet the proceedings are all in due form, and until the fact appears showing the real value of the land, nothing appears to show that just compensation was not to be made.
The more important question in the case is, whether the
In The Mayor &c. of Brooklyn v. Meserole, (26 Wend. 132,) a leading case, and referred to by the defendant’s counsel, the question discussed and decided was, whether the court of chancery had jurisdiction to interfere and arrest the proceedings in a street case, when the proceedings were illegal, so as confessedly to render them inoperative and void. It •was held by the court for the correction of errors that it was not a proper case for equity jurisdiction and relief. In such a case a common law certiorari is undoubtedly the proper remedy, thus reviewing and reversing the proceedings. In the prevailing opinion in that case, th$ chief justice, after discussing the jurisdiction of the supreme and chancery courts, says, 1. When the proceedings in the subordinate tribunal, or the official acts of public officers, affecting the title to real estate, lead, in their execution, to the commission of irreparable injury to the freehold; or, 2. To a multiplicity of suits, a court of equity may interfere and prevent the mischief in the one case, and excessive and vexatious litigation in the other. In Heywood v. The City of Buffalo, (14 N. Y. R. 534,) it
It seems to me that the plaintiff’s case might well be brought within all these exceptions, though I think it comes more properly within the third exception. The claim of the defendant is apparently valid upon the face of the proceedings, and it was necessary to aver and prove an extrinsic fact in order to establish the invalidity of the proceedings. That
Greene, Marvin and Davis, Justices.]
An action could, I have no doubt, have been brought to set aside the proceedings, certainly the award of the commissioners. The plaintiff demands judgment for a perpetual injunction, and if this is awarded to him, it will be all he needs. He has probably asked for some other relief to which he may not be entitled. The pleader has interspersed along in his complaint some averments not necessary; such as that the proceedings of the common council were void, and that the defendant had exceeded its corporate powers, &c. These are averments of conclusions of law. He has stated the facts, however, which show that he is entitled to an injunction. The judgment should be reversed, and a judgment should be entered in favor of the plaintiff, perpetually enjoining the defendant from entering upon the premises and opening the streets, under any claim founded upon the proceedings of the common council to obtain the land for a street. The plaintiff should have costs.