President & Fellows of Yale College v. City of New Haven

Pardee, J. The complaint in this case presents the following facts:—About the year 1868 the town of New Haven, then having jurisdiction over the territory in question, constructed a highway, extending from East Pearl street to the Chapel street bridge over Mill River, as an approach to the bridge, and supported such portion of it as was laid upon the mud flats by a sea wall on the south side thereof. This is an extension of Chapel street. A reasonable proportion of the cost of both highway and wall was assessed upon and paid by the owners of the adjoining land. This territory came under the jurisdiction of the city of New Haven. In its court of common council the legislature has vested exclusive power over streets and bridges within its limits, with the duty of construction and maintenance. The plaintiffs are owners of land adjoining the south side of the extension of Chapel street, together with such rights in the mud flats as follow the ownership of the adjacent upland. In June, 1885, the court of common council ordered proprietors on either .side of said extension to construct a sidewalk in front of their lands, respectively, to the acceptance of the board of public works. The wall required extensive repairs before the order could be carried into effect with a reasonable regard to the durability of the sidewalk. After the passage of the order the plaintiffs through their agent had several interviews with the board. Thereafter-they repaired the wall and laid the sidewalk with the knowledge and without the disapproval of the board. The harbor line is fifty feet distant from the bridge. The city repaired the wall and laid the walk from the bridge to a point eight feet distant. The plaintiffs repaired the wall and laid the walk over the remaining space. The first count is for money expended upon the entire wall; the second is for money expended within the harbor line. The defendant demurred on the following grounds: [8] 1st. That the wall and walk adjoined the plaintiffs’ land and they were in duty bound to construct the same. 2d. That the defendant neither employed the plaintiffs to construct them nor promised to pay them for doing it. 3d. That it was not the duty of the defendant to construct any part of the wall or walk, and it is not liable for the construction of any part of the same. 4th. That the plaintiffs were not required by the order to construct any more of the same than it was their duty to construct. The court sustained the demurrer and adjudged the complaint to be insufficient. The plaintiffs appeal. Before a court of common council can legally require an owner abutting upon a street to construct a sidewalk in front of his premises, the city must construct the street for the entire width at the proper grade. If a court of common council makes an order in reference to the construction of a sidewalk which requires the abutting owner to do something which it cannot legally require him to do, he can protect himself, first, by an appeal to the Superior Court and the procurement of a reversal; or, secondly, he can neglect to obey the order', and if the city should execute it and attempt to enforce payment therefor against him by legal process, he can interpose the illegality of the order as his defense. But if, without appeal, he executes the order, there is neither express nor implied promise upon the part of the city to reimburse him. Under such circumstances he is as a party to a cause permitting a judgment to stand against him without appeal. He is to be considered as having declared to the public that he would execute the work as ordered and at his own cost. And if any member of the board of public works had knowledge of such execution, he had the right to presume that he was doing the work in accordance with such declaration. The plaintiffs, as owners of the upland, had, as against all other individuals, the exclusive right of wharfing out over the flats adjacent thereto, to the channel of an arm of the sea, subject to the paramount title in the state for the protection of the right of navigation. And although the state [9] had put a limitation, upon their right to wharf, yet all that remained of practical value in the ownership was in them. This measure of ownership is a sufficient foundation for the order to construct the sidewalk. Moreover, the order required each proprietor to construct a sidewalk in front of his land; leaving him to determine for himself the extent of his ownership. Inasmuch as, under this order unappealed from, the plaintiffs recognized the ownership of the flats as being in themselves and voluntarily constructed the walk over the same, they are 'without the right now to call upon the city to reimburse them. There is no error in the judgment complained of. In this opinion the other judges concurred ; except Carpenter, J., who dissented.