23 Conn. 189 | Conn. | 1854
The declaration contains a count for money had and received by the defendants for the plaintiff’s use, and also a count for the value of the land, taken and appropriated by the defendants, under the provisions of their charter, for a public street, or highway, within the limits of the city. The right of the plaintiff to recover, upon the second count, has not, however, been pressed, and as plaintiff’s argument rests upon the claim that^^.inB’of 1 plaintiff has not, in point of law, been taken,\n the grom that the proceedings are all void, we presume this count was intended to be abandoned. It| seems, therapy } fore, to be sufficient to say, in reference to iVStaty ft the 'J proceedings of the city authorities are void, tn^piaiffij; land has not been taken, and he can have no right to recover for it, as if it had been, and if the proceedings are not void, or, at least, inoperative, so far as the plaintiff’s rights are concerned, it must be because his land has been legally appropriated to the public use, as one of the legally constituted streets of the city; and, as this could not be accomplished, without first making just compensation for the land taken, it follows, as of necessity, that such compensation must have been made; and, in no event, therefore, can the plaintiff recover upon this second count.
The charter of the city of Bridgeport authorizes such an assessment of benefits to be made. That portion of the charter, which relates to the subject, will be found in the thirty-eighth and forty-second, and the intermediate sections; and it is proper here to remark that we do not assent to a claim made by the plaintiff’s counsel, as to the proper manner of looking at these sections, for the purpose of giving a construction to them. It seemed to be assumed that we were to look at these several sections, independently of each other, as if they were each treating of a single, separate, distinct and several matter, and as having no relation to each other; whereas, as we look at them, they all relate to the same general subject, viz., the laying out, or altering, extending or enlarging of any new highway, street, public walk, public avenue, or public landing place in the city; also, the establishment of lines on the lands of proprietors, adjoining the streets and public avenues, between which and the
The forty-first section provides that “ whenever any highway, street, public walk, public avenue or landing place in said city shall be laid out or altered, or whenever any line shall be designated upon the land of any proprietor, between which and any highway, street, public walk, or public avenue in said city, such proprietor shall be prohibited to build, said court of common council shall have power, and it shall be their duty to ascertain what person or persons, owning or interested in lands or buildings in said city, will be specially benefitted by such lay-out, alteration or designation, and to apportion among, and to assess to be paid by such person or persons respectively, the whole, or such part as they shall judge reasonable, of the damages caused by such lay-out, alteration, or designation,” and then the section goes on to provide how the benefits thus assessed shall be collected.
In the case of Nicholson v. The New York & New Haven Railroad Co., 22 Conn. R., 174, the superior court instructed the jury that, in estimating the damages caused to the plaintiff’s property, by the defendants5 making an embankment on his land, in one of the streets of New Haven, to such an extent as to make it necessary for him to raise up his buildings from their original foundations, to enable him to gain access to them, which embankment was rendered necessary
But the plaintiff has not only been denied compensation for his land, taken by the extension of John street, but he has been assessed, and compelled to pay the sum of six hundred dollars, as for a benefit he has received by the extension. This assessment, we have seen, is authorized by the forty-first section of the charter of Bridgeport, but it is claimed that this section of the charter is unconstitutional and void. Provisions of a similar character to this are contained, we believe, in most, if not all, the city charters in the state, either in respect to the laying out or improvement of streets, or in respect to public parks, side-walks and sewers, and probably for many other city purposes; and these provisions, to a greater or less extent, have been acted upon, ever since the organization of cities in the state, and although questions, in respect to the exercise of this power, have frequently arisen in the courts, yet the constitutionality of the power itself has not, so far as we are advised, been seriously questioned before ; certainly, it has not been so questioned in our highest courts. Surely, the long acquiescence of the community, in the exercise of this important power, and the repeated sanction of. it by the legislature, in chartering our cities, ought to be some evidence of the legality of it. It is difficult to believe that a doubtful power of this sort, would be long submitted to, without question. But we agree that this is not conclusive upon it, however persuasive it may be. But what objection is there to the exertion of such a power?
We think the views, which we have here expressed, may fairly be drawn from the class of cases already cited, in which it has been held, that the local and peculiar benefit which a party receives by the laying out of a highway, or other
But the point we are now considering, although it has never before come up for consideration in this court, is not a new one to the profession; and it has very lately received the careful examination of the court of appeals, in New York, which, upon full argument, and in view of all the authorities, which could be brought to bear upon the question, came unanimously to the conclusion, that where a statute “ authorizes a municipal corporation to grade and improve streets,
As the constitution of New York, in relation to every point, which can be supposed to have any bearing upon this question, does not differ, in any essential particular, from our own constitution, this decision of that learned court, so lately made, ought to have a controlling influence, upon the question, if we had doubt in relation to it, on the ground of principle; especially, in the absence of any well considered case to the contrary; for we think, it is shown, in the opinion expressed in this case, that the contrary doctrine, which at one time, seemed to prevail, in Kentucky, cannot now be considered, as the law of that state. See the cases decided in Kentucky, referred to by Judge Ruggles, in 4 Comstock, 429.
But objections are made to the regularity of the proceedings, resulting in the assessment of benefits.
In the first place, it is insisted, that, as it appears the plaintiff’s land was valuable, damages should have been allowed him, as a matter of right.
This objection, has been incidentally answered already. Aside from the question of benefits, he was undoubtedly entitled to damages; but, if we are correct, in what has been said, then he was only entitled to the excess of damage, over his local and peculiar benefits; and, if there is no such excess, then he has suffered no damage, within the meaning of the constitutional provisions, requiring property, taken for public use, to be compensated for; for the reason, that he has obtained compensation, in the increased value to him, of his adjoining land, not taken for such use.
The plaintiff further claims, that the freeholders to assess
Some portion of this claim is well founded, undoubtedly. The appointment of appraisers, to estimate the damages to proprietors, caused by the laying out and extension of John street does not show, that the persons appointed, were either freeholders, or residents of Bridgeport; and although the warrant, for the collection of the assessment, against the plaintiff, which professes to give a history of all the proceedings, does state, that those persons, were in fact, freeholders of the city, yet we cannot think this is proper evidence of the fact. This fact can no more be shown by a statement in the warrant, than a judgment can be shown, by a statement in an execution, or by parol testimony, which no one would claim to be proper.
The rule undoubtedly is, that where it is attempted to acquire title to land, or to take from a proprietor his right to the unrestrained use of it, in invitum, and under the provisions of positive law, and in derogation of the common law, every requisite of the statute must be complied with, and should appear on the face of the proceedings, under which the property is attempted to be taken. Mitchell v. Kirtland, 7 Conn. R., 229. Hobart v. Frisbie, &c., 5 Conn. R., 592. Booth v. Booth, 7 Conn. R., 350.
And where it becomes necessary, for a party to show a fact like this, the due appointment of certain officers to make an appraisal, it-should be shown by the record, unless it appears the record is lost, in which event, secondary evidence of its contents may be proved. Griffin v. Rising, 2 Cush., 75. Nor can we sanction the defendants’ claim, that,
If we looked at the several sections of the charter of Bridgeport, as entirely separate and distinct from each other, as the plaintiff views them, we should have great difficulty in coming to any other result, than that the attempted appraisal of damages to the plaintiff, haying failed, in consequence of the appraisers not being freeholders of the city, the whole proceedings must be void also; and such would be the result, if they rested upon the legality of the appraisal under the thirty-eighth section of the charter. We have suggested, however, that we do not so look, at the charter. The object must be to come at the intention of the legislature ; and to do this, we take all the sections, bearing upon the general subject of taking property for public use, together; and the whole, as connected with certain provisions, directing, and prescribing, the means of making compensation therefor. And, in view of the subsequent proceedings, which have been had in this case, it appears to us, that the difficulty, which has been suggested, has been cured by those .proceedings.
The thirty-eighth section of the charter prescribes the mode of laying out streets, and provides for the assessment of damages caused thereby. The section is silent in respect to the assessment of benefits; but this court held, in a late case, that similar provisions' in a railroad charter, necessarily
This has been understood to be the law, by all parties', throughout these proceedings. Hence, no damages have been assessed by anybody to the plaintiff, while damages were assessed to all others, who were -differently situated. The committee, appointed by the mayor, after assessing the damages of all persons, whom they found to have been injured, close their report by saying, that no other persons have sustained damage by the extension of John street, and the committee appointed by the judge of the superior court, on the plaintiff’s appeal, say expressly, that the said David B. Nichols has sustained no damage; and although these proceedings were void for the reasons suggested, they show clearly how all parties have construed this section of the charter.
The forty-first section of the charter, provides for the assessment of benefits, by the court of common council; and on the 15th of July, 1850, that body appointed a committee to make an assessment of the benefits to proprietors, by the extension of John street. On the 22d of July, the committee report a list of individuals benefitted by the extension, and among them is the plaintiff, who is assessed, and set in the list, as benefitted to the amount of six hundred dollars. This report was accepted; the plaintiff was notified of it, and he appealed to a judge of the superior court
The plaintiff claims that this assessment was also void. He insists, that no assessment of benefits can be made, until it has been, in some way, regularly determined that no injury or damage has been suffered; and that this can only be done by a valid finding, under the thirty-eighth section of the charter: we think otherwise. If the appointment of appraisers of damages, by the mayor, had shown, that the persons appointed, were freeholders of the city, it would have regularly appeared, from their report, that the plaintiff had suffered no damage; but still they would have had no power to assess benefits, and it would have been necessary to have had an assessment under the forty-first section; and the common council, or their committee, under that section, must necessarily take into consideration the damage to the plaintiff, so far as to see that it did not amount to, or exceed the benefits; otherwise, there could be no benefits to ascertain and assess. As the appraisers of damage could only appraise the real damage, or the excess over the benefits, so the assessors of benefits could only assess the excess over the damages: and we do not see why a regular finding, by a competent board, under the charter, that the plaintiff has not been damaged by the extension of John street, is not necessarily involved in the finding, that he has been benefitted thereby, to the extent of six hundred dollars.
It was said, that the legislature never intended to constitute two boards, having jurisdiction over the same subject matter. But, to the limited extent which we have indicated, it appears to us otherwise. These two boards are so constituted, that it is not possible for their decisions to conflict. If the first committee find no excess of injury, they have nothing to appraise; and if the common council find no excess of benefit, they have nothing to assess; and as the
It was said, that it does not appear that the common council made any attempt to agree, in respect to the plaintiff’s damage. But the committee, who laid out the street, report to that board, that they were unable to agree with any of the parties whose lands were taken ; and this report was accepted. We think this sufficient, until something is shown to .the contrary.
Again, it was objected, that no notice was given of the time when the committee of the common council assessed the benefits. The duties of this committee were analogous to the duties of town assessors; and there was no more necessity of their giving notice, than in the 'case of ordinary assessors of taxes; the charter does not require them to do so. After the assessment was made, they gave notice to Mr. Nichols, and he then exercised his right of appeal to freeholders appointed by a judge of the superior court; and before the board to which he appealed, he had a full and fair hearing, which resulted in a reassessment of the same sum, that had been assessed by the committee.
What is meant by the claim, that the benefits were not properly apportioned, we do not know. The committee reported a list of persons owning lands, &c., who were specially benefitted, by the extension of the street, with the amount to which each was benefitted. We do not see what more could be done by way of apportionment.
Again, it is claimed, that the order to pay, and the warrant to collect the assessment, issued against the plaintiff alone. There is nothing to show the reason of . this, or that there was any impropriety in it. If the others paid their assess
Another claim was, that the damages which other persons had suffered by the extension, were ordered to be paid out of the city treasury; and could not, for that reason, be after-wards claimed of the persons benefitted. We find no foundation for this, in the record before us; and, if the fact was so, we see no objection to it. The city might pay the damages, and then reimburse itself by the assessment and collection of the benefits, as well as to cause the benefits to be paid directly to the parties injured.
Lastly, it is insisted, that, as the committee to ascertain benefits do not appear to have been freeholders, their assessment was void. But the charter requires that the court of common council shall ascertain the benefits; and the mode of doing it is not prescribed. For convenience, a committee of the board was appointed, who made the assessments, and reported them to the board, and t|gg report was accepted. It th|US,,l5.ecaj^]e the act of the court of common council, and there is no provision that that body shall be composed of freeholders.
Upon the whole case, therefore, we advise that judgment be rendered for the defendants.'
In this opinion Waite, J., and Ellsworth, J., concurred.
were of opinion, that, as it did not appear on the face of the proceedings, in laying out the street or highway, for the benefits of which the plaintiff was assessed, that the persons appointed to estimate, and who estimated the damages sustained by him by such layout, were freeholders of the city of Bridgeport, as was required by the thirty-eighth section of the charter, under which those proceedings took place, the said proceedings and laying out were ineffectual and void; and that this defect in the
Judgment for defendants.