Carson v. City of Hartford

Gbangeb, J. In the exercise of powers conferred by charter the common council of the city of Hartford passed an ordinance specifying the manner of laying out streets. It is a sufficiently detailed statement of this to say, that it requires the reference of a resolution proposing to lay out a street to the street commissioners before any vote is taken thereon; a publication in newspapers with notice to all objectors to file written reasons with them; and an investigation by and a report from them, approving or disapproving, with reasons in writing. Upon the reception of this report the council may reject the resolution or proceed in the following manner:—The commissioners shall assess damages to the owners of land taken; benefits upon owners of land benefited to the extent of the cost of the street; from these assessments appeals may be taken to the Court of Common Pleas; when these are determined the commissioners are to report to the council the entire cost of the proposed street; — 85 — the latter may then pass or reject the resolution; if passed the land is appropriated to public use when it is paid for. In May, 1874, a resolution was presented in the council proposing so lay a street over land of the plaintiff, and was referred to the commissioners. In June, 1874, they allowed damages to him and assessed benefits upon others; appeals were taken to the court, and were decided in 1877; in August of that year the commissioners made their final report as follows:—“ From the report and statements above recited it appears that the assessments for benefits are insufficient in the sum of $10,759.35, to pay damages as awarded, and such deficiency must be assumed and paid for from the city treasury if the improvement proposed is to be effected. It is the opinion of the board that the special benefits accruing therefrom to the city at large are not sufficient to warrant such assumption and payment. Moreover, the market value of real estate has become so much less since the assessment was made that both damages and benefits now seem excessive. The board therefore with great regret are obliged to recommend that the resolutions, as passed by the court of common council May 24th, 1874, for the laying out and establishment of new streets and building lines of West street be rescinded; and that all proceedings taken or pending in relation thereto be discontinued and abandoned. And to this end it respectfully submits the following resolution:—Resolved, that the resolutions, as passed by this court May 24th, 1874, for the laying out and establishment of the new street and building lines of West street be rescinded, and that all proceedings taken or pending in relation thereto are hereby discontinued and abandoned.” The resolution thus recommended by the board was passed by the common council on the 29th of October, 1877. In September, 1878, the plaintiff instituted this action for damages. The declaration is in four counts; the defendants intei’posed a demurrer. The case is reserved for the advice of this court. Nothing is claimed under the first count. Passing the second, the allegations in the third are, that in May, 1874, — 86 — the council laid out a highway over land belonging to the plaintiff; that in June, 1874, it appraised damages to him therefor to the amount of $8,200; that in October, 1877, it discontinued the highway before it had been opened or worked; that previous to the first date he had contracted for the erection of a building on the land, which contract the lay-out of the way compelled him to break, to his damage the sum of $500; that he was prevented from building upon, or deriving any revenue from the land, for the period of more than three years, to his damage the sum of $8,000; that he might and would have sold the same for $10,000 but for the lay-out; that at the last-named date he could sell the same for no more than $5,000, to his damage the sum of $5,000; that the defendants are liable to pay the damages consequent upon the lay-out and the discontinuance, by virtue of the statute which provides that “when any highway duly laid out has been or shall be legally discontinued before being opened and worked, no action shall be brought to recover damages assessed therefor, but the owner of lands over which it is laid out may recover of the town, city or borough his actual damages from laying it out.” Revision of 1875, p. 240, sec. 52. By charter the council is vested with exclusive power to lay out streets and to pass ordinances limiting itself as to the manner in which that power shall be exercised. The ordinance in existence in 1874 was therefore the then charter method—the law of this lay-out. The scope and effect of each act of the council in reference to it is to be determined in the light of the whole ordinance; upon considerations of order as to time, and of the relations which one act bears to every other concerning the same matter. JSTo one vote includes or expresses the action of the council. The ordinance is so framed that the first two acts must remain tentative and provisional until a third shall make them component parts of one decisive and effective vote; so framed that no step taken anterior to the determination of all questions as to assessments, shall lay out a street; the council reserved to itself an opportunity for the exercise of — 87 — judgment upon knowledge. The opening of a city street hinges upon the proper adjustment of benefits to land improved to damages for land taken. By entertaining the proposition provisionally assessments could be made and appeals have a standing in court; by judicial action these would be unalterably determined; there would be knowledge as to the cost of the proposed way and as to the persons who would be compelled to pay it; and with this knowledge would come the first opportunity for the exercise of judgment; and in the ninth section of the ordinance, speaking of the time when there would be action upon full knowledge, the council expressly reserves to itself the right then to reject the proposition. This right it exercised on October 27th, 1877; therefore no way was laid out, and the statute affords no relief to the plaintiff. In the second count the allegations are—that in May, 1874, the council laid out a street over the plaintiff’s land, and appraised damages to him therefor to the amount of $8,200; that he had made preparations for the erection of a building upon his lot; that the council discontinued the street in October, 1877; that at the first-named date the land was worth $12,000; that by the action of the council he was deprived of the use of, and was prevented from selling it, for the period of three years; and that during, that time it greatly depreciated in value—to his damage the sum of $15,000. Although the allegation is that more than three years intervened between the first and final acts of the council, no blame for the delay is imputed. As we have said that no way was laid out, the count must stand upon the proposition that if the council considers, for any period however brief, the matter of laying out a way, and a provisional award of damages is made to an owner of land if it shall be taken, and he is delayed thereby in the sale, or omits to make profit by the use of it, the city is responsible in damages. But, the council considered only—did not take. By considering no new relation between the city and the land came into being; for at all times the land of the plaintiff and of — 88 — every other owner is exposed to the right of the public to take it for public use. By considering, the taking became more probable than before; but it remained only a possibility; his exclusive possession was not interrupted; the power to sell was not taken from him; his use was made less profitable only by his apprehension lest a possibility might ripen into a certainty. Presumably the award of damages included the loss resulting from his breach of contract, as well as the value of the land; doubtless the award would prevent a sale for more than the valuation; but the prevention of a sale for more than a fair price constitutes no invasion of the rights of property for which the law furnishes any redress. Moreover, as with notice to the plaintiff of each act of the council there went notice that it was considering merely, and had not determined, if he has suffered loss by non-use it must be charged to his mistake in forecasting its action. This count is supported by the citation of authorities, some of which we mention. Eaton v. Boston, Concord & Montreal R. R. Co., 51 N. Hamp., 504—here the defendant removed a natural barrier, and as the result water carried sand and stones upon the plaintiff’s land; Glover v. Powell, 2 Stockton, 211—here the defendant removed a dam; Barron v. Mayor &c. of Baltimore, 2 Am. Jurist, 203—the defendant turned a stream of water, and as the result sand and stones were deposited in front of the plaintiff’s wharf, and vessels were obstructed in gaining access thereto; Pumpelly v. Green Bay Co., 13 Wall., 166—the defendant flowed the plaintiff’s land without compensation; Hooker v. New Haven Northampton Co., 14 Conn., 146—a like injury; Gardiner v. Trustees of Newburgh, 2 John. Ch., 162—an entry upon land without compensation for the purpose of building reservoirs. But, practically, each of these acts was a taking of land, was the actual expulsion and exclusion of the owner from it by force. Green v. Button, 2 Cromp., Mees. & Ros., 707—here the defendant by a false assertion to the vendor of a quantity of lumber, of a right to detain it from the possession of the vendee, the plaintiff, prevented the delivery thereof to him; Wynehamer v. The People, 13 N. York, 378 — 89 — —declaring the law which forbids both the keeping anywhere, for any purpose, and the sale of intoxicating liquors, owned at the time when the same went into operation, to be an invasion of the rights of property. This last was in effect the destruction of property. These cases do not determine the law of an instance of a contemplated but unaccomplished taking for public use. In the fourth count the allegations are that the defendants are an incorporated city, vested with powers granted and subject to duties imposed by their charter and the laws of the state; that in May, 1874, the plaintiff was the owner therein of a piece of land valuable only for building, and which could yield no revenue except from rents of buildings thereon; that previous to that date he had entered into a contract for the completing of an unfinished building thereon; that on that date the defendants, intending to injure and prejudice him, did, in violation of their legal duties, pass a vote proposing to lay out a highway which should include most of his land; did deceitfully advise him that the vote was a valid lay-out; did by their lawful agents forbid him from completing the building which he had commenced; did unlawfully endeavor to and did intimidate him and prevent him from completing it; did further deceitfully and in violation of their duties advise and notify him and all other citizens that the vote was a lawful lay-out, by making an assessment of benefits conferred and an appraisal of damages inflicted thereby, as if there had been a lawful lay-out; did appear by attorney upon the trial of appeals from said asessments; did wrongfully and unnecessarily prolong the proceedings upon said vote until October 24th, 1877, and did upon the last-named day rescind the vote; that during the period between these dates he was prevented from building upon the land; was deprived of rents therefrom which he otherwise would have received, was put to great expense for witnesses and counsel upon the trial of said appeals, was prevented during said period from selling the land by reason of the cloud upon his title and right to sell resulting from the unlawful acts of the defendants, and that at the first date — 90 — the land could have been sold for $10,000, and at the last could not be sold for more than $4,000; all of which he avers is to his damage the sum of $10,000. But the vote by the council, the assessment by the commissioners, and the appearance in court by the attorney, were acts within legal permission. No one of them, nor all combined, constituted a declaration to the plaintiff that a street had been laid out, nor a promise that it would be. They contained no false statement as to the past; none at all as to the future. The “ deception” was self-imposed by his erroneous inference of the future from the past. The “ intimidation” had this extent, that he was made fearful lest he should not so read the future as to make the greatest profit from his land; but this is not the fear for which the law gives damages. And the allegation that the city “ did wrongfully and unnecessarily prolong the proceedings,” is too vague and general to support a judgment. It points neither to an act, nor to an omission to act, for the purpose of delay, and is without suggestion as to whether the obstruction was for a day or a year. Moreover, it calls upon us to say that, of legal necessity, the intervention of three and one-half years between the first and last votes would of itself and under all circumstances subject the city to damages. This we cannot do. But, while preserving to the council the privilege of considering after knowledge, we do not say that it cannot abuse this privilege; nor that as a consequence of such abuse the city may not be compelled to indemnify land-owners who have suffered loss by inexcusable delay. This count is supported by the citation of authorities, among which are the following: Mootry v. Town of Danbury, 45 Conn., 550—a case of injury resulting from the negligent construction of a bridge; Rowe v. Portsmouth, 56 N. Hamp., 291—one of injury from negligence in allowing a sewer to be obstructed; Inman v. Tripp, 11 R. Isl., 520—injury from water turned upon the plaintiff’s land by change of grade of the street; Ashley v. City of Port Huron, 35 Mich., 296—injury from a defective sewer; Allentown v. Kramer, 73 Penn. St., 406—injury from water from an obstructed gutter; — 91 — Lee v. Village of Sandy Hill, 40 N. York, 442—trespass upon land and removal of fence; Mitchell v. City of Rockland, 45 Maine, 496—where the officers of a town took possession of a portion of a vessel belonging to the plaintiff and converted it into a hospital; Plum v. Morris Canal & Ranking Co., 2 Stockt., 256—where the defendants proposed to raise the highway in front of plaintiff’s premises; Howell v. City of Buffalo, 15 N. York, 512—where the city enforced payment of avoid assessment; Walling v. Mayor &c. of Shreveport, 5 Louis. Ann., 660—entry upon land and cutting down trees without right; Soulard v. City of St. Louis, 36 Misso., 546—entry upon land without compensation; Stetson v. Faxon, 19 Pick., 147—obscuring the plaintiff’s building by projecting the adjoining one into the street; Thayer v. City of Boston, 19 Pick., 511—obstructing access to plaintiff’s premises by building a stall in front of them. These again are trespasses, and, as we have said, furnish no precedent for making good to a land-owner profits which he omitted to make because of his belief that the city would take his land. In McLaughlin v. Second Municipality, 5 Louis. Ann., 504, the court in affirming a judgment for the plaintiff says:— “ We cannot conceive any reasonable excuse for the municipality to commence such a proceeding twice, and finally abandon it, after keeping the suffering proprietor in suspense for more than eighteen months, and have no hesitation in pronouncing that it is legal and equitable that they should pay the actual damages suffered.” In Graff v. Mayor &c. of Baltimore, 10 Maryland, 544, the city abandoned a project after assessments were confirmed by a court against its objections; the court said that the city might be liable in some form of action for loss sustained by a land-owner by reason of its action; in Hyullen v. Second Municipality, 11 Robinson, 97, the city abandoned proceedings after an assessment to a land-owner, but took possession of his land; the court said he could not recover the assessment price as upon an implied sale, but only damages for taking possession. In Norris v. Mayor &c. of Baltimore, 44 Maryland, 598, the court says — 92 — that “ when the assessments have all been finally settled the city can then fairly exercise its election to abandon the enterprise or pay the assessments and proceed with the work. For losses to owners occasioned by delay subsequently occurring through failure of the city authorities thus to abandon or pay, it is, we think, just and right the city should be held liable, and this we understand to be the effect of' the decision in Grraff’s case.” But, if it is the purport of any one of these decisions that the liability of the city depends solely upon the space of time between the reception and rejection of a proposition, we cannot accept it as the law of this case.. We advise judgment for the defendant. In this opinion the other judges concurred.