City ex rel. Lancaster v. Armstrong

Wagner, Judge, delivered the opinion of the court. This was an action on a special tax bill issued by the city engineer, under a sewer contract, to one George Prendergast, and by him assigned to the plaintiff. The answer set up the invalidity of the ordinances under Avhich this Avork was done, and as a further and special defense stated that the sewer was built across the defendant’s land; that defendant objected to its being constructed there, because he had no use for it, and was unwilling to pay for it, and it was finally agreed that if he would give the city the right of way through his land'to construct the sewer, he should not be called upon to make payment for three years from that date; that upon this agreement and express understanding, he did in writing convey to said city the right of way, and that the time for payment had not expired when the suit Avas brought. The evidence fully sustained this special defense set up in the answer. It showed that the contract was let out under [300] the original ordinance establishing the sewer, and that in a short time thereafter, the work was stopped, and an amended ordinance adopted by which the route was changed so as to run though the defendant’s land. The defendant objected to this, and the city had no right to invade his premises without first condemning his land and procuring the right of way. The chairman of the sewer committee, the superintendent of sewers, and the city engineer then agreed with the defendant, that if he would dedicate the portion necessary for constructing the sewei’, so that the same might be built according to the new route established, the time for the payment on his part should be extended to three years. And upon this agreement the dedication was made, and the work proceeded. The contractor was present when this agreement was entered into; but after the work was completed this action was brought in about one year. The court refused to declare the law to be, that if from the evidence it was found that defendant relinquished the right of way for the sewer in consideration of the agreement or promise that no steps should be taken to collect the tax within three years after the completion of the same, then no recovery could be had till the expiration of that time, and then rendered a judgment for the plaintiff. As the sewer ran through the private land of the defendant, the city manifestly had no right to proceed till the same was either condemned, or till his consent or relinquishment was obtained. The agreement was valid and binding upon the parties, and constituted the only terms upon which the city had any authority .for using defendant’s land. But it is insisted upon the argument that the city council never gave its officers any power to make the contract. No express authorization is shown. The settled rule, however, is that a corporation acts only through its officers, and in the present case the officers were charged with the specific power of constructing and superintending sewers, and the city availed itself of the benefit of their acts. A ratification will therefore be presumed. It is also objected that this agreement [301] could not interfere with the rights of the contractor to have his pay when he completed the work. But as against the defendant, he had no rights under an illegal proceeding ; until steps were taken and consummated for condemnation, or until the right of way was relinquished, the city could not use or appropriate the defendant’s land, and any contract it might make with any individual for that purpose would be void as to him. And when an agreement was made by which the city acquired the right, all were bound by it. Till the time expired for bringing the suit under that agreement, the plaintiff had no standing in court. This disposes of the case at present, and it is unnecessary to consider any other question; The judgment must be reversed and the cause remanded. The other judges concur.