26 A. 393 | Conn. | 1892
The sole question in this case, presented by demurrer to the plaintiff's complaint, overruled by the Superior *345 Court, final judgment rendered, and appeal by the defendant, is whether a lien filed by the defendant on land of the plaintiff for expense of grading that portion of a new street over the land upon which a sidewalk was ordered to be constructed, and which required to be cut down ten to twelve feet lower than the original grade of the plaintiff's land, which grading the plaintiff was ordered but refused to do, is valid. That is, whether, under the charter of the city of New Haven, the plaintiff could lawfully be required, at her own expense, to do such grading. The charter, which is a public act, (9 Private Laws, p. 299, sec. 52,) provides, among other things, for the placing of a lien on the land of any proprietor of land or buildings fronting on any highway or street in the city who shall "neglect or refuse to perform the thing or things required by an order of the court of common council, for the making, raising, grading, paving or flagging any sidewalk or gutter in said city, adjacent to said land or building, in the manner and within the time specified in such order."
It is the claim of the defendant that this is not a new question in this state; that "under charter provisions similar to that of New Haven, occupants of abutting lands have been required at their own expense to grade and construct sidewalks;" and the case of Lewis v. Cityof New Britain,
Now in reference to this decision, so confidently relied upon by the defendant, two things are to be noticed. First, that the court had no occasion to draw the line of distinction, stated in Yale College v. City ofNew Haven, between such grading as is involved in the construction of the street "for the entire width at the proper-grade," and such as is incident to the construction of the sidewalk upon the sides of such street, and at the required level above the roadway, since either would be grading, though the latter would be, more strictly speaking, what the charter prescribed, a grading forsidewalks. And second, that the latter alone was in the mind of the court, as is manifest from the language quoted, in which the consideration upon which the requirement of the charter was presumed to be based is stated, namely, a distribution of burdens in proportion to benefits; since, as Judge COOLEY says in his work on Constitutional Limitations, 630, "lots above and below an established *347 grade are usually less benefited than the others, because the improvements subject them to new burdens in order to bring the general surface to the grade of the street, which the others escape." So that if the contention of the defendant were sanctioned and such construction put upon the language of the charter as it contends for, he to whom the improvements would be of the least benefit would be subjected to the greatest expense in making them. He whose land was above or below an established grade would have to excavate or fill to that grade, and in addition thereto do all that one whose land corresponded to such grade was required to do in the construction of sidewalks.
There is no error in the judgment complained of.
In this opinion the other judges concurred.