4 Johns. Ch. 26 | New York Court of Chancery | 1819
The persons assessed were entitled to make the road through their town, instead of paying the assessment, so that the same be commenced “ by the 1st of August next,” and completed in three years. The act meant to grant a privilege for a pretty heavy burden, and it ought not to be in the power of the company to deprive them of it, by delaying the assessment until after the 1st of August ensuing the passing of the act. It appeared by the bill that the assessment was not made until after the 1st of August, 1817 ; and taking the act together, and comparing one part with another, the true construction must be, that the road was to be commenced by the 1st of August,
The following decretal order was, thereupon, entered :
“ It appearing to the court, from the discussions upon the bill only, that those persons mentioned therein, are justly entitled, according to the true intent and meaning of the act in the said bill mentioned, in lieu of payment of the sums at which they are respectively assessed, to make the road according to the provisions in the second section of the act, by commencing the same by the first day of August next, (which means the first day of August, next after the assessment made,') and completing the same within three years thereafter, it is thereupon ordered that the motion be denied, and the injunction continued until further order,” &c.
The defendants, afterwards, put in their answer, stating that three commissioners were appointed under the act, on. the 15th of April, 1817, who received immediate notice of their appointment. Two of the commissioners met on the 13th of May following, for the performance of their duty, but declined proceeding without the other commissioner, Eiersted, who was a surveyor, and well acquainted with the lands through which the road was to run. That Kiersted. having been previously appointed a commissioner under another turnpike act, was engaged in the summer, and autumn of 1817, in the discharge of that trust, and though repeatedly requested, was unable to attend during that time, with the other two commissioners under this act, and who could not well execute their trust without a competent surveyor. That the commissioners did not review and finally settle their assessment, until the 7th of August, 1818, but had completed their assessment roll on the 8th of April, 1818, at which time, and on the 20th of June, 1818, they caused notice of the assessment list to be published according'to the-
On the ground that the answer denied all the equity of the bill, Betts again moved to dissolve the injunction.
When the motion was made in January last, to dissolve the injunction, the answer of the defendants had not come in, and the conclusion from the statement in the bill was, that the defendants, by the postponement of the assessments, had been deprived of the opportu- • nity of making the road through their lands, or town, according to the provision in the second section of the act. The bill charged, that the commissioners did not make the assessments until the 7th of August, 1818, and that the delay had deprived the plaintiffs of the privilege of making the
By the answer of the President and Directors of the Turnpike Company, it appears that the delay in making the assessments, in 1817, was unavoidable, and was the act of the commissioners, and not of the company. That the assessment roll was made and completed on the 8th of April, 1818, and notice thereof immediately given according to the requisitions of the act. That on the 10th of July, 1818, notice was affixed up, on the part of the company, at suitable places, on the whole extent of the road, giving information to the owners of lands assessed, that they would receive proposals for making such parts of the road as were not under contract. That they have at all times been ready, until the road was put out by contract, in September and October, ISIS, to permit the plaintiffs and others, to make the road within their town, or through their lands, according to the act. That no such offer or proposal was ever made to them. Indeed, the bill does not state that the plaintiffs ever intended or offered to make the road.
It would be too strict a construction of the act to hold, that if the assessment was not made and completed before the 1st daj'of August, 1817, the whole object of the act must be defeated and destroyed. The facts in this case show that it could not have been done by that day, though tfie Turnpike Company were guilty of no laches. Some time was requisite to appoint, and notice, and assemble the commissioners. An accurate survey and assessment upon so great a tract of new and uncultivated country, also required considerable time. When the assessments were made, the com
Upon the construction given to the act, by the counsel on the part of the plaintiffs, they were not to begin to make the road until all this was done; and they contend that all this business must have been done, and the lien on the lands created, before the 1st day of August, 1817. I think this an unreasonable construction, for there was not sufficient time for the performance of so great a duty, and for the allowance of the six weeks, and of the one month thereafter, and of the necessary intermediate times, between the passing of the act and the 1st of August. We ought to adopt a construction that would enable the parties to carry the act into operation, with convenience and safety, and at the same time, secure to the plaintiffs their privilege of working the road. This can be done by construing the words, “ by the first day of August next,” in the second section of the act, to mean the 1st day of August, next after the assessment shall have been made. That this is the true construction of the act, appears not only from the reason and necessity of such a construction, in order to give the act due and just operation, but from the provision in the sixth section, declaring that the sums to be assessed should become due on the first day of December next “ after the assessment hereby authorized shall have been completed.” If the assessment was to be completed, at all events, by the 1st of August, 1817, according to the construction given by the plaintiffs’ counsel to the second section, the words above
If this be the true construction, the inquiry is, whether the plaintiffs have not had an opportunity to make the road, and whether they have not lost it, by not commencing the same by the first day of August, next after the assessment made. It appears, by the answer, that the assessment was made and completed by the 8th of April, 1818, and notice thereof given. The defendants also gave notice on the 10th of July following, that they were ready to receive proposals for making part of the road. These notices, we must conclude, duly came to the knowledge of the plaintiffs, and yet they do not pretend that they ever made proposals, or even intended to work the road under the inspection of the company. The proposals on the part of those persons who wished to avail themselves of the privilege of the second section of the act, were to be made before the assessments were reviewed and finally settled, and filed, and had become liens on the lands. I infer this from the provision in the second section, by which they were to be allowed in satisfaction of their assessment, at the rate of such a sum for each mile, as the commissioners should determine; and the commissioners were fundi officio, after the maps and lists were deposited. The plaintiffs had not made any effort, nor taken a single step towards electing to make the road, or commencing the same, even down to September last, when the company began to enter into contracts with different individuals to make the road.
It has been said, that though the assessments were made and completed on the 8th of April, yet that they were not reviewed, and finally Settled, until the 7th of August, 1818, and, therefore, the plaintiffs have to the 1st of August, 1819, to commence their work. This would be a very unreasona
Injunction dissolved.
