Judson v. City of Bridgeport, 25 Conn. 426

Judson v. City of Bridgeport

25 Conn. 426 | Conn. | 1857

Hinman, J.

Several questions have been made in this case, but We shall notice only one of them, as that is of a character which is decisive of it, and must, we think, under the facts found by the court, preclude the defendants from successfully making any defense to the plaintiff’s action.

The plaintiff’s property has been levied upon and sold, under a warrant issued by the mayor of Bridgeport, for the purpose of collecting an assessment of benefits received by the plaintiff, in the laying out and widening of one of the streets of the city, and in order to raise the money to pay for the damages assessed to certain individuals, by reason of said alteration and improvement of the street.

Now, in the case of Nichols v. The City of Bridgeport, 23 Conn., 189, we held that the record of the proceedings under which property is attempted to be taken for such a purpose, must show the legal right of the city authorities thus to take it; and that before damages can be required to be paid by the persons benefited by the improvement, they must, under the city charter, be assessed by “ three judicious and disinterested freeholders of the city,” unless the court of common council agree with the parties injured as to such damages. In this case the court of common council did not agree with the persons injured, and it does not appear, by the appointment of the appraisers to estimate the damages, that the persons appointed were either freeholders or inhabitants of the city. In the case of Nichols v. Bridgeport, a similar difficulty was obviated by the fact that large benefits were regularly assessed to the party claiming to be injured, on account of the same improvement by which he claimed to be injured; the court holding, under the circumstances of that case, that the assessment of benefits meant only the benefit which he received, over and above any damage to him by reason of the same improvement. On which ground it was held to be immaterial whether any damages, as such, were in fact assessed in that case or not. Here, however, the assessment of benefits to the plaintiff was made for the purpose of raising the money to pay the damages assessed to other persons. There can be no pretense, therefore, that *430these damages have, in effect, been assessed by the assessment of benefits received by the plaintiff, because the parties for whom the money was raised, were not parties, in any sense, to the proceedings under which the benefits were assessed. Nor is there any room to presume that the damages were legally assessed, even if such a presumption could arise in the absence of any facts to show how they were assessed, because it appears here, upon the face of the proceedings, that they were not assessed by indifferent freeholders as required by the charter. The right to assess benefits received by the plaintiff, of course depends upon whether there are damages to be paid for the improvement, as well as upon whether the plaintiff was benefited thereby ; and it can not be known that there are any such damages until they are agreed to, or assessed in the mode prescribed by the charter. As this has not been done in this instance, the assessment against the plaintiff was premature and of course illegal, and the money collected of him under it must be repaid to him.

We therefore advise the superior court to render judgment for the plaintiff.

In this opinion the other judges, Storrs and Ellsworth, concurred.

Judgment for plaintiff advised.