Gilbert v. City of New Haven

39 Conn. 467 | Conn. | 1872

CARPENTER, J.

This is an appeal from the doings of the common council of the city of New Haven in assessing benefits against the appellant, to defray in part the expenses of widening one of the streets of the city. A large number of personswere interested in the improvement, to some of whom damages were awarded, and against others benefits were assessed.

The 30th section of the city charter provides that “ any •party who shall feel aggrieved by any act of the court of common council, or of the board of road commissioners, in reference to the laying out, constructing, altering or improving any public square, park, street, highway, private walk, bridge, sewer, gutter, or drain, or by any act of said court, or of said board, or of the board of compensation, in making any of the assessments of damages or benefits authorized in this act, may make written application for relief, etc.”

In Clapp and others v. The City of Hartford, 35 Conn., 66, we held that an appeal from an assessment by one of several parties assessed does not bring up the whole apportionment for revision. It will be well to bear in mind the doctrine of that case, and the foregoing extract from the city charter, in considering the questions involved in the present case. It must also be remembered that the doings of municipal authorities in laying out or altering streets and highways, and assessing damages and benefits thereby occasioned, are judicial proceedings, so far at least that they cannot be impeached or called in question collaterally, and that the appellant was a party to the proceedings now under consideration.

Each of the numerous questions presented by this record will now be considered.

1. It appears that the board of compensation made an assessment of damages and benefits, and reported the same to the court of common council. That report was recommitted by one branch of the common council, and the board subsequently made another and different report, which was finally accepted and approved by both branches. Tbs appellant offered in evidence the first report, as it is stated, for the purpose of showing different assessments of both damages and benefits from those in their final report. The court excluded the evidence. It is difficult to see how this evidence conduced to prove anything in issue between the parties. If it was intended to show by it that the assessment against the appellant was unreasonable and disproportionate, as we suppose it was, it is a sufficient answer to say that it was an indirect and very unsatisfactory way of proving it. It is a fact susceptible of proof by direct evidence, and such evidence is demanded by the rule which requires the best evidence to be produced. Besides, the evidence excluded, so far as it tended to prove anything, tended to prove that'the appellant’s assessment should have been higher, inasmuch as a larger sum was assessed against him in that report than in the one which was finally adopted.

2. It is further objected that the appellant had no notice of the re-committal, and of the subsequent proceedings. We are satisfied that none was required. The whole matter, from the time of its first reference to the board of compensation to the time the report was finally adopted by the court of common council, was one proceeding. The appellant was notified in the first instance, and appeared. If he neglected to attend to the subsequent stages of the proceeding it affords him no ground of complaint now.

3. The next objection is that the court excluded evidence offered to show that the damages awarded to the Derby Railroad Company were excessive and unreasonable. When that matter was before the board of compensation, it was competent for the appellant and all others interested to appear and be fully heard relative thereto. After it was determined and the common council had taken final action upon it, it was conclusive upon all concerned, except that the railroad company alone had a right to appeal. Neither the city nor property holders liable to be assessed, had any right of appeal. Much less reason is there to claim that any of these parties have a right to bring the same matter before the appellate. tribunal collaterally, as is attempted to be done in the present case.

4. Proof of the indebtedness of the Derby Railroad Company to the city was properly excluded. The fact of indebtedness in itself proves nothing. Possibly it might be a motive to a fraudulent widening of the street; but fraud is not claimed nor alleged.

5. The court excluded evidence offered to “ show that the assessments of damages for lands taken on one side of Water street and of benefits conferred on the other side of the same street by the alteration, were unequal, disproportionate and unreasonable.” So far as this evidence related to damages awarded to, or benefits assessed against, other parties, the court was clearly right in excluding it for reasons sufficiently apparent from what has already been said. Had the appellant offered to show that his own assessment was unreasonable and disproportionate, and for that purpose had instituted a comparison between his own and other assessments, it would have presented quite á different question.

6. The appellant offered to show that the widening of the street was unnecessary and unreasonable; but the appellee objected and the court excluded the evidence. That question was not properly before the court. The order of the common council establishing and directing the improvement was not appealed from, as it should have been if the appellant intended to question the necessity of the improvement.

7. It also appears from the motion that the improvement “ was of some slight benefit to property on State street” which was not assessed, and “ that the benefits reached in some small degree” to property on other streets which was not assessed. The appellant claimed that these facts rendered the assessments unequal, disproportionate and unjust; which claim the' court overruled. It is evident from the manner in which this is stated that the property referred to was not substantially benefited; but that the benefit was so slight and inconsiderable as not to affect, to any appreciable extent, the amount assessed against the appellant. There is not enough in it to justify us in saying that the assessments were thereby vitiated.

8. It further appeared that the board by mistake omitted to assess two small pieces of property which were equally benefited with other property which was assessed; and for that reason it is claimed that the assessments were unequal and unjust. It does not appear how large these lots were, nor to what extent they were benefited. Hence it does not appear that any substantial injustice was done the appellant by the omission. Until the contrary appears, the presumption is that it falls within the principle, de minimis non curat lex.

We find no error in the judgment complained of.

In this opinion the other judges concurred.