Borough of Wallingford v. Hall, 64 Conn. 426

Borough of Wallingford v. Hall

64 Conn. 426 | Conn. | 1894

Fehit, J.

The charter of the borough of Wallingford, which is a public act, empowers its court of burgesses to make and enforce by-laws upon certain subjects, one of which is the “ excavation or opening of the streets or highways for public or private purposes. ” Pursuant to such authority, said court of burgesses passed a by-law “ prohibiting the opening or making of any excavation, vault or cellar, in, upon, or under any street or highway in said borough, without the consent of the warden or court of burgesses,” and providing that “every person violating said by-law shall forfeit and pay, for such offense, a sum not exceeding twenty-five dollars, for the use of said borough.” This action was brought for a violation of such by-law, the alleged breach being an excavation made by the defendant in the highway adjacent to a tract of land owned by him.

The complaint was made returnable before a justice of the peace. The writ was dated November 18th, 1892, and served November 19th, 1892. It was alleged that the defendant made an unauthorized excavation in May, 1891, “ and has ever since allowed and caused said excavation to remain ; ” and that “ by reason of said offence of the defendant in making said excavation, the defendant has forfeited and become bound to pay to said borough the sum of twenty-five dollars, as provided by said by-law.”

In the Court of Common Pleas, to which the action was appealed by the defendant, to the defense of denial the defendant added, as a second defense, the limitation of General Statutes, § 1879, which provides that: “No suit for any forfeiture, upon any penal statute, shall be brought, but within one year next after the commission of the offense.” It was alleged that “ the offense was not committed within one *430year next before the bringing of this action.” To this defense the plaintiff demurred, and the court overruled the demurrer. The plaintiff then denied the matters contained in said second defense, and upon the issues made up by the defendant’s denial of the complaint and the plaintiff’s denial of the second defense, the case was closed to the jury. Upon the trial, the plaintiff having introduced its evidence and rested its ease, the defendant moved for judgment, as in case of nonsuit, which the court granted, upon the ground “ that the plaintiff proved that the excavation in question was made, if ever, in May, 1891, and the file shows that the suit was not brought until November 19th, 1892, more than one year later, thus bringing it within the statute of limitations.” The Court of Common Pleas having denied a motion to set aside said nonsuit, the plaintiff appealed to this court, assigning as reasons of appeal the overruling of the plaintiff’s demurrer, and the granting and refusing to set aside the nonsuit.

It was conceded upon the argument that these reasons presented substantially the same question ; for although, as Avas said by this court in Brown & Brothers y. Brown, 56 Conn., 252, a statute of limitations “is wholly a matter of defense, and one that constituted no part of the plaintiff’s case ; ” yet, if the court correctly ruled upon the demurrer, and the evidence produced by the plaintiff showed that the only offense claimed was committed so long previous to the bringing of the action as to be barred, it needed no further evidence upon the part of the defendant to establish this fact. He might have rested when the plaintiff did, and then, as any other verdict than one for the defendant “ would inevitably be set aside upon review,” such a verdict might have been directed by the court. Peoples’ Savings Bank v. Borough of Norwalk, 56 Conn., 556. The plaintiff borough, therefore, does not, and could not claim that the granting of a nonsuit injures it, providing the law and facts required that a verdict be returned against it. But it is claimed that the law and facts did not so require, and this upon two grounds: First, that the by-law in question is not *431a penal statute ; and second, that the complaint alleged and the evidence showed, that the defendant had ever since the excavation was made, allowed it to remain open, and that in consequence the offense was continuous; that in fact the excavation had increased as the earth fell in, enlarging its width nine inches from the time it was first dug, until the commencement of the suit.

We think the court below correctly held the by-law to be a penal statute, within the intent and meaning of General Statutes, § 1379. That it is penal cannot be doubted. Hallenbeck v. Getz, 63 Conn., 387. That it derives its force, as the plaintiff itself states in its complaint, from action taken in pursuance of power conferred by the General Assembly, is also manifest. Such action is in legal contemplation that of the General Assembly whose power enabled it. The enactment is therefore law, statutory in its nature, and as such within the purpose, and so properly embraced within the fair construction, of the language of the statute of limitations in question.

We think also the court correctly ruled upon the other point. The law concerning continuing nuisances and trespasses is, in the abstract, as the plaintiff claims. But it does not apply in this case. The complaint is not adapted to recovery on such ground. Even if it were, the by-law in question would not support it. It is exclusively confined to the opening or making of an excavation without lawful authority. That is not in its nature a continuing act. The meaning of the provision seems clear and certain. But if it were not, the defendant could not be held liable upon construction fairly doubtful of ambiguous language. Pratt v. Litchfield, 62 Conn., 118.

There is no error in the judgment complained of.

In this opinion the other judges concurred.