Stevens v. Borough of Danbury

53 Conn. 9 | Conn. | 1885

Granger, J.

By a resolution of the General Assembly passed in 1860 and added to in 1862, the borough of Dan-bury was empowered to supply itself with water by purchasing, or by taking for the purpose, any stream of water, water privileges or lands necessary or convenient for the purpose, within or without the limits of the borough; with a provision for the assessment of the value of any property taken otherwise than by purchase and for payment to the owner of the property so taken.

Under this resolution the borough, at a legal meeting held on the 16th day of July, 1880, voted to procure a supply of water for the use of the borough “ from a stream running near the residence of Samuel Gregory.” On the 26th of September of that year the borough purchased of Gregory certain lands through which the stream ran, and which were below certain lands and a water privilege on the same stream belonging to the plaintiffs. The lands were purchased of Gregory with the intention of constructing a dam thereon across the stream, making a pond or reservoir, which would have set the water back upon and have destroyed the mill privilege of the plaintiffs.

Under the resolution before mentioned the water commissioners of the borough, not being able to agree with the plaintiffs as to the compensation to be made them'for the taking of their mill privilege and lands, applied to a judge of the Superior Court for the appointment of appraisers to assess the damage. Appraisers were appointed and a hearing was had before them, both parties being present, and. they made their report, assessing the damages at $3,000. This report was duly recorded in the records of the Superior Court for Fairfield County, and the proceedings were in all respects according to the provisions of the resolution in such a case.

On the 29th of June, 1881, the borough, at a legal meeting, voted to rescind the vote of July 16th, 1880, and nothing further was done with regard to the taking of the plaintiffs’ land and privilege, and the $3,000 assessed as damages for the taking was not paid. Notice of this action of the borough was given to the plaintiffs and they after-wards sold to other parties and conveyed by warranty two parcels of the land which the borough had proposed to take. The plaintiffs now sue the borough to recover the $3,000 assessed in their favor.

It is found that the defendants never took actual possession of the lands in question or of the mill privilege, or in any manner occupied them or interfered with their occupancy by the plaintiffs. Had they in theory taken possession or by what they did become the owners of the property, so that they were bound to pay the assessed value to the plaintiffs ?

The resolution of the General Assembly empowers the water commissioners of the borough to “purchase, and take conveyances in the name of the borough, of all lands, property or privileges necessary or convenient for the purposes of the actj to hold in sufficient quantity the water of any stream, either within or without said borough, by the construction of dams across the same; to enter upon any lands near such proposed dams and procure earth, stones or other materials for the construction and maintenance thereof, and to make suitable waste-ways for the surplus water of such stream; to change the location of any road or pass-way which may be covered by the waters of any reservoir so formed, and take land therefor; and to enter upon and make use of the ground or soil of any railroad, street, highway or private way, or public or private grounds, and lay, construct and maintain all necessary pipes and aqueducts.”

Another section of the resolution provides as follows:— “ Said borough shall be liable to pay all the damages that shall be sustained by any person, persons or corporation by the taking of any land or estate as aforesaid, or by the construction or laying of any reservoirs, pipes, aqueducts, or other works for the purposes of this act. And if at any time it shall appear that any damage has occurred or may be likely to occur to any person, persons or corporation by reason of taking or using their land or estate for the purposes of this act or in the construction of said water-works, and the said board of commissioners cannot agree with the owners of such property as to the amount of compensation or damages to be paid to them, then such compensation or damages may be assessed by three disinterested persons under oath, to be appointed by a judge of the Superior Court on application of either party; notice to be given of such application as directed by such judge. * * * Which said appraisers shall report their doings, embracing the amount of their assessment, to the clerk of the Superior Court for Fairfield County, to be by him recorded; and thereupon such assessment shall be taken and held to be a final adjustment of said compensation and damages between said parties, and payment thereof or deposit of the same with the county treasurer to the use of such owner or owners shall release said borough from liability to any further claim for compensation or damages.”

There is here, it will be seen, no provision that the amount assessed- shall constitute a debt which may be recovered of the borough by the owner of the property proposed to be taken; the amount is fixed by the proceedings as the sum to be paid if the land is taken, and its payment is clearly a condition precedent of the right to take it. The mere incipient or theoretical taking is really only a proposed taking. This is manifest from the use of the word “ take ” in the resolution in relation to lands taken for the laying of pipes, where the proposed taking, upon which the proceedings for the assessment are had, is a very different thing from the actual entry upon and digging up of the land for the laying of the pipes.

We conclude therefore that the borough, after the assessment, had still the right to abandon the idea of taking the land, and the whole project if it deemed best, and that the only security that the owner of the property had, was in the necessity of the borough making payment before the land was actually taken.

There may be a hardship in compelling a land or mill-site owner to hold his property in entire uncertainty, after an assessment, whether it will be taken or not; but the inconvenience is of the same kind which attends all proceedings for the taking of land for public improvements, and which is incident to the ownership of property in a community and especially in a city. This inconvenience was shown in a marked degree in the recent case of Carson v. City of Hartford, 48 Conn., 68, where it was held by the court to give no right of action against the defendant city. There is generally a provision in such resolutions that the payment shall be made, if at all, within a limited time; and there ought properly to be such a provision in every case. But its absence here cannot affect the question now before us.

The plaintiffs claimed also to recover for counsel fees and other expenses incurred in the hearing before the appraisers. These very clearly they had no right to recover in any circumstances. The borough was acting within the law in applying for an assessment of the damages, and the law under which the proceedings were had made no provision for costs on either side, while the abandonment of the taking of the property by the borough could not create an obligation to pay these costs where no legal obligation existed before. There was no negligence on the part of the borough ; no misrepresentation; no action that was not in every respect according to law. There was nothing upon which to found a claim for damages for a consequential injury in any form.

The Superior Court is advised to render judgment for the defendants on both counts of the complaint.

In this opinion the other judges concurred.