After advisement the following opinions were delivered :
The bill in this case was filed for the purpose of setting aside the proceedings of the common council of the city of Brooklyn, in widening and extending a certain road, called the Bedford road, within the limits of the city. These proceedings were instituted
The road passed through lands belonging to the complainants, and the commissioners of estimate and assessment in the valuation of the property taken, allowed nothing for the site of the old road that had been previously regularly laid out, and then used and occupied, and which it was proposed to widen and extend. I do not understand from the case, that the application to the common council proposed to interfere at all with the ground thus already in use as turnpike road, except to widen the track by adding small strip of land on each side within the corporate limits so as to make it of the width of eighty feet instead of sixty-four, for the better accommodation of the city; and in this aspect of the case it is difficult to perceive any legal, or reasonable claim for damages in respect to it; for, if on dissolution of the turnpike company the site would revert to the original owners, there is nothing in the proceedings of the common council interfering. with this reversionary interest. I admit in that event the two strips along each side of the track would make it less valuable; but at most, that was a question of damages arising out of the appropriation of these strips, which rested in the discretion of commissioners. But assuming that the application included the site of the turnpike road, and that damages should have been awarded by the commissioners to the complainants, it was but an irregularity in their proceedings which should have been taken advantage of, and corrected on the motion for confirmation of the report, and is not ground for the cognizance of a court of equity, as has been repeatedly adjudged by that court, and conceded by. the learned Chancellor in the case before us.
The main ground, however, upon which the court below placed its right to interfere and arrest these proceedings, is, the want of jurisdiction in the common council of Brooklyn to lay out and open public streets in this part of the city since the statute of 1835, (Statutes of that year, p. 136,)
The question then is, whether an illegality in the proceedings, such as confessedly renders them inoperative and void, affords ground for the cognizance of a court of equity, and makes it the duty of that court to interfere and arrest them upon any acknowledged head of jurisdiction. The ground set up in the bill, and upon which the Chancellor has placed his opinion, is, that as the proceedings operate upon the real estate of the complainants, if persevered in, though they may not actually affect the title, being void, they tend to cast a cloud over it which diminishes its value, and may be used as a means of vexatious litigation. This, I admit, is now an established ground of chancery proceeding in particular cases, and it is material, therefore, to enquire whether the case under review comes within it. It is not claimed as a universal proposition, that every act or proceeding by a party, that may tend to cast suspicion over the title, and lead to litigation in a court of justice, can be properly brought under this head; for the consequence would be to drarv all the litigation in the state concerning disputed titles into the forum of equity. For instance, an heir might set up a claim to an estate, accompanied with documentary evidence of title and heirship, presenting a colorable right to the land, which might seriously affect the value to the occupant, and threaten litigation; but no lawyer would think of filing a bill for the purpose of trying the right in a court of chancery, and enjoining him against the assertion of his title in
In looking into the course of proceeding upon this subject, it will be found that the doctrine grew out of applications to have surrendered up, and cancelled, deeds and other instruments which were utterly void, but might be used as a means of casting a doubt over the title, and after a lapse of time, endanger its security, from the loss or difficulty of procuring evidence of the fact. But, even the exercise of the power in such cases, fluctuated for some time in England. Lords Thurlow and Loughborough inclining against it, on the ground that the party’s remedy at law was complete. It cannot indeed, be said to have taken root as an established doctrine of the court until the time of Lord Eldon; 7 Ves. 3; 13 Id. 581; 17 Id. 111; and it is now still denied there, where the instrument is void upon its face, as it is then no better than blank paper, incapable of being used for vexatious purposes, 3 Milne & Craig, 97; 7 Sim. R. 627; though Chancellor Kent, when he decided the case of Hamilton v. Cummins, 1 Johns. Ch. R. 517, in 1815, was inclined to think that the weight of authority and the reason of the thing, were equally in favor of the jurisdiction, whether the instrument was or was not void at law, and whether it was void for matter appearing on its face, or from proof taken in the cause. While I concede the authority of the court in the cases mentioned, and admit the propriety of its exercise, the doubt and hesitation under which it was introduced as an established doctrine, should, at least, lead us to scrutinize with caution its application to the case under review, as I think it cannot be denied that the claim to interpose and arrest these proceedings is a step in advance of any of the cases or authorities upon which it professes to be founded.
I do not profess to be very conversant with the principles or cases of chancery law, but I can say that none have
The case of Mooers v. Smedley and others, 6 Johns. Ch. R. 28, directly affirms this doctrine. The bill, there, was filed to enjoin the collector of a town from collecting a tax, and the supervisor from paying over the money, on the ground that the board of supervisors had levied the same in direct violation of law. But Chancellor Kent refused to interfere, and in the course of his opinion observed: “I cannot find by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control the determination of the supervisors; but that the review and correction of all errors, mistakes and abuses in the exercise of the powers of subordinate public jurisdictions, and in the official acts of public officers, belongs to the supreme court. That it has always been a matter of legal, and never a matter of equitable cognizance;” and that “ in the whole history of the English court of chancery, there is no instance of the assertion of such a jurisdiction as was then contended for.” My examinations have confirmed the truth and soundness of this conclusion; but after this explicit admission from so high an authority in that court itself, it would be an idle display to enter upon a review of cases.
For aught that appears before us, the simple action of trespass in a justice’s court would have afforded ample redress for all the actual damage sustained; and if the construction of the act of 1835, given by the court below, and with which I am inclined to concur, be correct, that remedy is still open to the complainants.
The case stands upon the bald-and naked ground of the right of a court of equity to interfere and arrest the proceedings on account off their tendency to cast doubts and obstructions upon the title to the two strips of land proposed to be taken for widening and extending the Bedford road, and upon the adjacent territory assessed for benefit—a doctrine that would at once bring under the review of that court, all that immense mass of proceedings in opening and widening streets and avenues in our cities and villages; in laying out public and private roads in our towns; and, in fine, the doings of every subordinate tribunal, or public officer, that might affect the title to real estate. Any one familiar with this description of legal proceedings, carried on quietly and almost daily in these subordinate jurisdictions, and extending over every part of the territory of the state, will at once realize- the boundless field opened, and which, if the precedent be established by an affirmance of
I know the learned Chancellor has neither the desire or • • • . inclination to enter it, unless in obedience to a sense of duty and the ancient jurisdiction of the court, following where the foot-prints of his learned and distinguished predecessors lead; and must believe that he has been subdued and carried beyond the outer boundary of his court, by the hardship and injustice of the particular case. These hard eases make bad precedents in the courts both of law and equity, and are usually found at the bottom of them. But it is satisfactory to know here, as has been before stated, that upon the ground and principle of the relief of the court below, the remedy of the party is still open and complete.
If the proceedings of the common council are void, the simple action of trespass, perhaps, in a justice’s court, will afford full redress, both in respect to the unauthorized invasion of the lands by the officers and agents of the corporation, or in case of an attempt to collect the assessment out of the personal property. If they are not void, then it is conceded the court had no power to interfere.
Senator Dixon also read an opinion, holding that the Chancellor had not jurisdiction in a matter of this nature.
Senator Verplanck said that he also had written an opinion corresponding substantially with that delivered by the Chief Justice. He could not see how chancery could properly exercise jurisdiction in the case. It was fit and proper that the supreme court should alone have a supervision of the proceedings of subordinate tribunals, subject of course to a review in this court. He conceded this was a hard case, but the question must be considered as res judicata.
On the question being put, Shall this judgment be reversed ? the members of the court divided as follows:
In the affirmative: The President of the Senate, the Chief Justice, and Senators Clark, Denniston, Dixon, Hawkins, Hull, Humphrey, Hunter, H. A. Livingston, Root, Scott, and Verplanck—13.
In the negative: Senators Furman, Hopkins, Hunt, Lee, Nicholas, Peck, Rhoades, and Works—*8.
Whereupon the decree was Reversed.