42 Conn. 377 | Conn. | 1875
The town of Norfolk proceeded under the statute to take the petitioner’s land for the purpose of enlarging a cemetery. The land was duly appraised, the proper decree was passed by the Superior Court, and the money was deposited with the county treasurer for the petitioner’s use. Thereupon the title vested in the town.
The petitioner desired that the town should relinquish the land so taken, and, at his instance, the votes set out in the petition were passed by the town. The committee thereby appointed, pursuant to such authority, purchased another lot, but upon further consideration the lot so purchased was not regarded as suitable, and the selectmen declined to complete the arrangement with the petitioner. Subsequently the vote of the town was rescinded, and the authorities were proceeding to lay out and grade the ground taken from the petitioner for burial purposes, when this petition was brought, and their proceedings stayed by the temporary injunction. The Superior Court heard the cause, denied the prayer of the petition, and dissolved the injunction. The cause is brought before this court by a motion in error.
The principal objection to the judgment of the court below rests upon the assumption that the town by its vote, and the proceedings under it, had abandoned the interest it had acquired in the petitioner’s land, and consequently that the petitioner had a right to have that interest re-conveyed to him. We think this assumption is not well founded.
To constitute an abandonment there must be an intention to abandon,- and that intention must be accompanied by some act by which the land is actually abandoned. The votes of the town indicate an intention, or at least a willingness, to abandon the land, but they do not necessarily show an actual abandonment.
We interpret the votes in view of all the circumstances as
The facts found by the court below will not justify a decree in favor of the petitioner.
The decree of the Superior Court vested in the town the title to the land for the purpose for which it was taken. The town held the land in trust for all persons who had a right to bury therein. It is doubtful whether the town had the power to relinquish the land and thereby defeat the trust. But waiving that question, it is manifest that the equities of the-case are not with the petitioner.
It was judicially determined by the Superior Court that public convenience and necessity required the taking of the petitioner’s land; it is now found that there has been no-change of circumstances rendering such taking less necessary or less proper, and that the same necessity still exists. It also appears that the lot which was proposed to be taken as a substitute for the petitioner’s land, is not a suitable and proper lot for that purpose; and it is expressly found that the petitioner “has in no respect been placed in a worse position than he was in before the votes referred to were passed by the town and the release tendered, unless by his refusal to receive the money so deposited with the treasurer.” The respondents-then have done no act whereby the petitioner has been deceived or misled to his prejudice. The petitioner attempted to recover his land by negotiation and failed. The failure left him as he was before negotiation. The Superior Court therefore, in refusing to grant him relief, committed no error.
