Gilpin v. City of Ansonia

Hamersley, J. The plaintiff’s demurrer to the second — 79 — defense states substantially five reasons why the pleading is claimed to be insufficient:— First. That the defendant in stating its defense of a legal assessment of benefits and damages still in full force and effect, sets up a second and a separate and distinct defense, by alleging that the plaintiff consented to the change of grade, making no claim for damages therefor until July, 1895. This is plainly not so, especially in view of the amendment in which the defendant says the consent is claimed only as a license to the borough to make the change without prepayment of damages. However unnecessary such allegation may be, it does not make the pleading bad for duplicity. Second. That the facts stated in the second defense show that the city of Ansonia had no power to make the alleged assessment. It is admitted that the borough had power to make an assessment, but it is claimed that the provision of the Constitution prohibiting the taking of property for public use without just compensation, required the payment of damages before the change in grade was made. How far such prepayment is necessary in the case of property clearly taken within the meaning of this clause of the Constitution, especially when taken by the State directly or through the agency of a municipal corporation, has never been fully considered by this court. Hooker v. New Haven & N. Co., 15 Conn. 312, 326. The question does not arise in this case, because the sum which the defendant may be liable to pay for damages sustained by an owner of adjoining land by reason of a change of grade in the highway, does not represent compensation for the “ taking of property,” within the meaning of the Constitution. In such cases the “ taking ” occurs when the land within the highway is condemned for that public use. Compensation must then be made; and such compensation at the time the Constitution was adopted, included by force of a legal presumption, all future consequential injury to property rights of the owners of adjoining land, caused by the lawful acts of the public in adapting the land taken to the purposes of a highway. A change in the grade — 80 — of a highway is such lawful act, and does not necessarily cause a legal damage to the property of adjoining owners; and even when legal damage may result, such damage is not compensation for “ property taken.” Nicholson v. New York & N. H. R. Co., 22 Conn. 74; Fellowes v. New Haven, 44 Conn. 240; Callender v. Marsh, 1 Pick. 418. This legal presumption of compensation for consequential injuries that might arise in the future, was partially abolished by statute (§ 2708), and a liability to pay the amount of actual damage sustained by a change in the grade of a highway was recognized; but this legislation did not so alter the character of the act by which a grade is changed, that a lawful use of property legally condemned becomes the seizure of property without compensation. A mere change of grade in a highway is clearly distinguishable from the appropriation of the highway to another use; from the imposition of an additional servitude. The distinction is pointed out in Nicholson v. New York & N. H. R. Co., supra, p. 85. This view was alluded to in Platt v. Milford, 66 Conn. 320, 335, but not settled, because unnecessary to the decision in that case. It is now a material question, and we hold that compensation for damage that may be incurred by a change of grade, is not a condition precedent to the lawful execution of an order for such change, unless required by statute. In this case the charter of the borough and of the city do not require the appraisal to precede the work. It being lawful for the borough to make an assessment at the time of its merger in the city, it was lawful for the city to make such assessment. The charter of the borough was repealed, but the municipal corporation was not extinguished; the alteration of the form from a borough to a city, did not break the continuity of its existence. The city charter expressly provided against such a result, and required the city to execute and perform every obligation of any kind and nature incumbent on the borough, and authorized it to have and execute all the rights of the borough. The liability of the city for any damage caused by the change in grade was the same as that of the borough; the obligation to appraise the damage and assess the better — 81 — ments was the same; the liability to an action in case of neglect to perform that duty was the same. Upon December 1st, 1898, it became the duty of the city to cause an appraisal of damages and assessment of betterments in respect to the change of grade in Tremont street, to be made, and to have this assessment made in the manner provided by law; and the only manner provided by law was that contained in the city charter. The charter of 1898 modified, without substantially altering, the mode of assessment prescribed by the charter of 1887; it is not claimed that such an alteration of the procedure was of itself invalid, and we think there is no ground for such a claim. It follows that the city of Ansonia had power to make an assessment. Third. That it appears from the facts stated in the second defense, that the assessment made was not in accordance with the charter. The procedure prescribed in the charter requires: 1, an estimate by the Board of Common Council, which is a valid assessment unless the person or persons affected thereby neglect or refuse to accept the estimate of the Common Council; 2, in case of such neglect or refusal, an appointment by the mayor of freeholders who shall make the assessment in the manner prescribed,' and report to the Common Council; 3, an acceptance and adoption of said report by the Common Council; 4, notice to the parties named in the assessment. Such assessment is final and conclusive, unless an appeal is taken to the Superior Court for New Haven county, held on the first Tuesday of the month next following. The second defense alleges the due performance of all these requirements. The only deviation suggested, is the appointment of a committee by the Common Council, which gave a hearing to the parties and made an estimate which was, on September 11th, 1895, adopted by the council. The appointment and action of the committee did not prevent the final action being that of the Common Council, in accordance with the charter. Bartram v. Bridgeport, 55 Conn. 122. Fourth. That the present action was brought before the assessment was made. The plaintiff assumes that she had a fixed right of action against the borough the moment its ser — 82 — vants entered upon the highway for the purpose of changing the grade. This is not the law. In Platt v. Milford, supra, p. 329, we said that § 2703 “recognized an absolute liability for damages caused by such alteration on the part of the municipality ordering the same; so that when such municipality failed to follow the mode prescribed for it by law in ascertaining such damages, the party injured may bring an ordinary action at law, based on such absolute liability, to recover his damages.” This liability does not exist until-actual damage has been sustained, and the right to an action is not complete until the municipality has failed to perform its duty in ascertaining the damages in the manner prescribed by law. The very statute which recognizes a legal liability, prescribes how its amount shall be ascertained. It does not exclude the parties from compromising their differences by an agreement express or implied; but it does not permit each person injured to enforce his separate claim by an action at law, until the municipality charged with the duty of ascertaining in the prescribed manner the amounts due, shall have failed to perform that duty. Public interest calls for the settlement in one proceeding, of claims arising from one public improvement. When this action was brought, the city of Ansonia had not failed to perform that duty (unless the delay had been such as to bar the statutory proceeding). On July 13th the city set in motion the proceedings for a legal assessment; on September 11th the first step in the assessment was completed, a step which might constitute a final assessment through the acceptance of the plaintiff; she refused to accept, and on September 28th the next step was taken, and on October 5th the amount of the final assessment was fixed. This action was brought on September 17th, after the assessment proceedings had commenced, and was made returnable October 7th, after the amount of the assessment had been determined. When this action was brought, the proceedings prescribed by law for the ascertainment of the damages and benefits was in process of execution ; when the defendant appeared in court in obedience to the writ, the proceeding had been substantially completed. These facts — 83 — are a complete defense to the material allegation in the 6th paragraph of the complaint, that “no provision has been made by either the borough of Ansonia or the said city of Ansonia, for the legal assessment of benefits and damages by reason of said change of grade on said Tremont Street.” It thus becomes unnecessary to consider the claim urged by the defendant, that the plaintiff by appearing before the assessment committee on October 5th and presenting her claim, was estopped from pursuing an action which might have been maintained if she had not appeared. Fifth. That it appears from the second defense that no assessment was made within a reasonable time after the change of grade was made. It was not incumbent on the municipality to make the assessment until after the change in grade had been completed, but it was its duty to make the assessment within a reasonable time thereafter. An unnecessary delay may justify a party injured in bringing his action at law; such delay, whether long or short, is evidence of a failure to commence the proper proceedings, but is of no avail as such evidence, when the proceedings have in fact been commenced before suit is brought; unless indeed a delay may be so unreasonably long as to be a bar to any legal assessment. Assuming, for the purposes of argument only, that a legal assessment may be so barred, we cannot say that it appears from the second defense that the delay was so wholly unreasonable. The law in relation to assessments for changes in grade since the enactment of § 2703, has not been well settled. We cannot say that it was altogether unreasonable for the borough, under the existing state of the law, to assume that the damages and benefits from a particular change were equal, and that no duty to make an assessment existed unless somebody claimed a damage; and in respect to this particular change of grade, our reports show that the validity of the borough action in making the change was in controversy, and consequently the power of the city to make an assessment was in doubt until that question was settled. Cook v. Ansonia, 66 Conn. 413. The record before us shows that within a short time after the decision settling the duty of — 84 — the city, these proceedings for an assessment were commenced; The assessment of benefits and appraisal of damages, as alleged by the defendant and admitted by the demurrer, was a good defense to the action; and the demurrer was properly overruled. There is no error in the judgment of the Court of Common Pleas. In this opinion the other judges concurred.