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It may be said that nearly all of the decisions which have been quoted refer to the regrading, or alteration of the grade, of a street. But, if there is no duty upon a city to protect the land owners against the consequences of a new excavation which is made after the street has been constructed, and after is has been long used, it is difficult to see why another standard or rule should be imposed when the street is first made passable for the public, and is to be brought to a proper level. Although I am impressed with the seeming injust tice and hardship of a method of constructing and repairing streets which throws upon the individual proprietor, if he has not been compensated for thiconsequential injury, a burden which would be onerous for the corporation to bear, I am constrained by the decisions of courts whose opinions are justly entitled to great weight, to hold that a municipal corporation can properly construct and repair streets in this manner. It follows that the defendants were constructing this street with the ordinary care which the law demands. Let the bill be dismissed, without costs.
$ 2362. Dedication.- Dedication of a street or highway may consist in simple acquiescence on the part of the owner, or in positive unequivocal acts signifying his intention to give up the soil for street purposes. Barney v. Baltimore, 1 Hughes, 127.
$ 2363. Where dedication of a street is claimed by mere acquiescence on the part of the owner, the use by the public must have been at least twenty years; but a less period suffices where there is heen any positive act on the part of the owner signifying his assent to the use of the land as a streut. Ibid.
$ 2364. If one owning land exhibit a map of it on which a street is defined though not as yet opened, and building lois be sold by him with a front or rear on that street, this is an immediate dedication of such street to public use. Ibid.
$ 2365. Where in a city a street which is laid out to bind on or run to a river is dedicated or surrendered to public use, it gives tbe public the right to use the street for any purpose for which public streets are used in that city, including the right to use it as a wharf and to permit vessels to load and unload at it. It makes it public for all purposes, unless some express reservation be made in the act of dedication. Ibid.
$ 2366. The “ town of Detroit” was laid out and platted into streets, lots, etc., under act of congress of April 21, 1806, authorizing the governor and judges of the then territory of Michigan to lay out the town and adjust all differences as to lots therein. This duty was performed April 27, 1807, and amongst other things done, Woodward avenue was dedicated as a public high way to the water's edge of the river Detroit. Brig Empire State, Newb., 519.
& 2367. The United States being the owner of a tract of land within the corporate limits of the city of Chicago, which was sometimes used for a fort, and on which congress had erected a light-house, and having concluded to sell a portion of it, the agent of the government laid down the whole tract with streets ard lots marked out, and without any buildings or reservations in the plat. Only a part of the tract was sold to private persons, and it was held that the city could not lay out and use the streets marked on that part still belonging to the United States. United States v. Chicago, 7 How., 185.
$ 2368. Foe in streets.— Where a mere easement is taken for the public highway, she soil and freehold remain in the fee of the land incumbered only with the easement, and upon discontinuance of the highway the soil and freehold revert to the owner of the land Harris v. Elliott, * 10 Pet., 25. See $ 2321.
$ 2369. Soil and freehold on certain streets, held not to pass under and by virtue of the term • appurtenances,” as used by a jury in its verdict in certain proceedings by which the lands were taken by the United States. Ibid.
& 2370. The statute of October 30, 1781, of the legislature of Massachusetts, limiting cere tain actions with a view to protecting and establishing the doings of a committee in layină out streets, held, not to apply to any question relating to the soil and freehold of the streets, if the easements should at any time thereafter be discontinued. Ibid.
$ 2371. A plat of an addition to a city in Illinois, not executed, acknowledged or recoriled in conformity with the statutes of Illinois, operates only as a dedication of the streets should thereon to the public, and does not convey to the public the title in fee of such stree. *. Banks v. Ogden, 2 Wall., 68.
$ 2372. Upon the bankruptcy of a land owner the fee in streets upon land owned by him, and which have been dedicated to the public, pusses to his assignee. Ibid.
$ 2373. A grantee of property, adjacent to a street in which the public have only an easement, takes the fee to the center of said street by virtue of the conveyance of the property adjacent thereto. Ibid.
$ 2374. The fee of the land in Water street, Keokuk, Iowa, is in the adjoining land owners, but is subject to the rights of the public. Barney v. Keokuk, 4 Dill., 597.
$ 2375. A street was shown in an addition to the city of Chicago to be bounded on one side by Lake Michigan. Helil, that the owner of adjacent property on the land side of such street owned only to the center thereof; the lake half of the street being in the proprietor thereof, who dedicated it to the public use. Banks v. Ogden, 2 Wall., 68.
$ 2376. If a street, tow-path, or passage way, or other open space be permanently established for public use, between a river and blocks in a city fronting upon it, the owner or owners of such blocks are not riparian proprietors of the land between the blocks and the river. The Schools v. Risley, 10 Wall., 113.
$ 2377. There is no material difference in principle, in regard to the rights of the public in a city street, wbether the fee of the street is in adjacent owners or in the city. Barney v. Keokuk, 4 Otto, 340.
$ 2378. An appraisal of a lot, designated by metes and bounds, “with the appurtenances," does not apply to the fee of a street upon which such lot abuts. United States v. Harris, 1 Sumn., 37.
$ 2379. The soil over which a street or highway is laid out still remains the property of the original owner, subject to the easement, and he may pass the title thereto notwithstanding the incumbrance. Ibid.
$ 2380. A street, bordering on a navigable river, must be intended to be used for purposes of access to the river and the usual accominodation in such a connection. Therefore, even if the title of an abutting owner, owning the fee of the street, attached to accretions thereto from the river, it would be a bare legal title, subject to the public easement and use of the street. ney v. Keokuk, 4 Otto, 339.
& 2381, Duty to keep streets in repair.— It is the duty of a city to require that holes or openings in a sidewalk or court, made for the purpose of admitting light to basements, shall be properly guarded, and it is negligence for a city to permit such holes to be left open. Lombard v. City of Chicago, 4 Biss., 462. See & 2328.
$ 2392. The act of the Rhode Island legislature, requiring highways to be kept in repair, imposes upon cities the duty of keeping sidewalks free from obstruction by accumulated snow. City of Providence v. Clapp, 17 How., 170.
$ 2383. Towns in Maine are required to keep their highways, townways and streets in such repair that they shall be safe and convenient for travelers with horses, teams and carriages. Nichols v. Inhabitants of Brunswick, 3 Cliff., 84.
$ 2384. The village of Evanston, Illinois, has ample power and authority to keep its streets and walks in a safe condition at all times for passage, and it is its duty so to do. This duty was not suspended during the change of Evanston from a township to a village. The identity of the corporation continued during the change, and its obligations as to streets, avenues, sidewalks, drains, etc., continued in full force. Evanston v. Gunn, 9 Otto, 667.
S 2385. Contracts for improving streets.- A paving contract which follows the ordinance need not pursue the advertisement for proposals to do the job. Hitchcock v. Galveston,* 3 Woods, 287. See $s 2330, 2331.
$ 2386. That a new contract has been substituted for the original paving contract is a good defense to an action upon the latter. Ibid.
$ 2387. A contractor agreed to do preliminary work and to lay a pavement, with the consent of abutting property holders, on a street in a city. He began the preparatory work without such consent, but was stopped. Held, that the contract was entire, and that the consent of the abutting property holders was a condition precedent to its fulfilment. Ibid.
$ 2388. The city of St. Paul having all general powers possessed by municipal corporations at common law, including the power to contract for the grading of streets, and to sue and be sued upon such contracts, may, therefore, take any lawful steps which an individual could to arrange all difficulties growing out of such contracts by an amicable settlement and adjustment. Warren v. St. Paul,* 5 Dill., 493.
$ 2389. The power of the common council of the city of St. Paul to compromise the claims of its contractors is not restricted by the powers conferred upon its board of public works. Ibid.
$ 23:30. Failure to establish a grade on a street contracted to be paved does not invalidate the paving contract. Hitchcock v. Galveston,* 3 Woods, 287.
82391. When a paving contract is established against a city, it is entitled to all the legal consequences of a valid contract, including damages for loss of expected profits, even where such profits are very large, if they would naturally have resulted from forfeiting the contract. Ibid.
$ 2392. Where paving was contracted to be done and paid for in municipal bonds, on a breach of the contract the measure of damages must be the value of the bonds which the contractors were entitled to receive, on the supposition that such bonds would have been valid. Ibid.
$ 2393. Where a statute gave a municipal corporation “complete control over the streets and squares of the city,” and “power to require that the 'cost of paving, etc., shall be borne by the owners of the adjoining property,” etc., this authority does not mean that the city itself has no power to contract for the paring of its streets, and that the abutting owners on its streets are alone liable to paving contractors to pay for the work done, even though the charter provide that such owners “shall be bound as upon liabilities contracted by them selves.” Memphis v. Brown,* 1 Flip., 188.
$ 2394. Where the authority to the mayor and chairman of a street committee “to proceed” with the paving of a street was limited upon the failure of property owners to comply with a certain notice to be served upon them, which notice was not given, held, that no such failure occurred, and the mayor and chairman, without it, possessed no authority to contract for the construction of the sidewalks. Hitchcock v. Galveston,* 3 Woods. 287.
$ 2395. Averments that certain ordinances passed by the common council on the subject of paving sidewalks were not in good faith followed and observed, either in advertising for proposals, preparing specifications, fixing the grade, notifying property owners to pave in front of their lots, or in framing the contract entered into with the contractors, but that in each of these particulars there was a fraudulent departure from the ordinance, calculated to defraud the city and the property owners, and to throw into the hands of the contractors & most unconscionable advantage, with an option to do all the work or only part of it, as might be most profitable to themselves, and pointing out in a specific way the manner in which such departures were made, and further stating that the profits to be realized by the contractors from the contract and claimed by them were grossly exorbitant and unreasonable, exceeding one hundred per cent. on the outlay, which the work required, and charging that the contractors suborned persons to make bogus bids for the work at high rates, so as to make it appear that the contractors' bids were reasonable and moderate, and that by the suppression or failure to furnish information as to the specifications of the work and the grades to be followed, other persons who might and would have bid were deterred from so doing, held to be sufficient specification of the facts to constitute the alleged fraud. Ibid.
$ 2396. Under such allegation of fraud evidence is admissible that no specifications of the work to be done were ever made or filed in the mayor's office; that no grade was established by the city engineer; that no specifications, estimates or computation of the amount of work and material necessary to the construction of the sidewalks was made by him or obtained by the mayor or chairman of the committee of the common council having the matter in charge; that the contract was not in conformity to the advertisements for proposals; that the work contemplated by the advertisements and the contract would have exceeded all provisions made by bonds or otherwise for the payment thereof; that the advertisements were so framed as to require bids for the entire work in bulk. Ibid.
$ 2397. Power to borrow money and issue bonds for street improvements.— The power to borrow money and issue bonds for sidewalk improvements must be conferred upon a municipal corporation before it can assume to perform these acts. Such power is not inherent in it. Ibid. See $ 2330.
$ 2398. The charter of Galveston does not, expressly or by implication, confer power upon that city to borrow money and issue bonds for sidewalk improvements. Ibid.
$ 2399. The power to borrow money and issue bonds for sidewalk improvements, not being conferred, either expressly or by necessary implication, is excluded by provisions in a charter for raising money by taxation for general and special purposes, for issuing bonds limited to a specific purpose, that purpose not being sidewalk improvements, and by providing that the cost of sidewalk improvements shall be borne by the owners of abutting lots, and shall be collected by assessment on the abutting property. Ibid.
$ 2400. The first act incorporating the town of Alton, dated February 20, 1833, authorized the board of trustees “to open and keep in repair streets, avenues, lanes,” etc., and by section 7, " to regulate, grade, pave and improve the streets, avenues, etc., and to extend and widen the same." Held, that this gave the trustees ample power to improve the streets and alleys of the town, and to enter into contracts for that purpose; for where a corporation is authorized to do that which can only be accomplished by a contract, it has power not only to make the contract, but to carry out in all its details the principal power given. Having power to pave streets, widen them, etc., the corporation could make contracts for such improvements; therefore, the bond given by the town of Alton, “in part consideration of Slow, Kemble & Perkins entering into a bond conditioned for the grading and improving of Peoria street in the town of Alton, as designated in said conditions, and for no other consideration,” was given with lawful and competent authority, and was therefore valid. On July 21, 1837, a second act of incorporation relating to the city of Alton was enacted, section 31 of which provides: “That a common council elected under such act shall be deemed in law successors to the trustees of the town of Alton to all intents and purposes, and all obligations and contracts entered into by the trustees of Alton shall be carried into full effect by the common council of the said city of Alton.” Held, that this conferred full authority to the said corporation to carry out the contracts of the trustees under the former act, and a bond given in discharge of a bond which had been given by the town of Alton, by which the city of Alton acknowledged itself to be indebted unto G. & N. Sturtevant in the full and just sum of $778.83, which sum it obligated itself to pay to the Sturtevants with interest, properly signed and sealed, was a valid bond upon a meritorious consideration, i. e., the consideration for the first bond in discharge of which the second was given, and the Sturtevants could maintain an action against the city of Alton on such second bond. Sturtevant v. City of Alton, * 3 McL., 393.
$ 2401. Damage to property in improving streets.- A city having elected to grade a street or build a sewer is legally responsible for the damage which accrues from the wrongful and negligent manner in which the work was done by it or its agent. Leavenworth v. Casey, * MaCahon, 124.
$ 2402. Where a person's property has been flooded by water, owing to the improper grading of a street and construction of a sewer, the defense by the city, when sued for such damage, that in the judgment of the officers of the city the work on the street and the sewer was properly and sufficiently done to answer the purposes intended, is not sufficient. Such officers were bound to make the sewer of sufficient size to guard against accidental obstructions and extreme freshets, and it is no excuse for failure so to construct it that the engineer or any other person who constructed it thought it sufficient. Ibid.
S 2403. A municipality acts judicially in constructing, grading, sewer building, and other such improvements, and is not liable to an action at law for an error in its judgment with reference to such work; but in the prosecution of the work contracted to be done, its agents act purely ministerially, and are bound to see that it is done in a safe and skilful manner, being liable for failure so to do. Ibid.
$ 2404. Action against the corporation for damaging plaintiff's property by raising the grade of the street. Held, that the defendant was liable if its agents acted ignorantly or negligently, but not if they acted knowingly and wilfully. Pritchard v. Georgetown,* 2 Cr. C. C., 191.
$ 2405. In an action on the case for filling up a street so as to shut up the windows and doors of the plaintiff's warehouse, held: (1) The corporation had by law the right to pave the streets, and of course to raise and lower particular parts of any street if such raising or lowering should be necessary for performing the work in a reasonable and proper manner, and the individuals who may be injured by it have no right of action for such injury unless expressly given by act of assembly; but if a wanton and unnecessary injury is done an action may be sustained. (2) The corporation, if liable at all, are answerable for the conduct of their commissioner, if he was acting under their authority and was engaged in the work in which they employed him when the injury, if any, was done, although he may have acted without their orders or contrary to them; but if he committed an injury unconnected with the business in which he was employed, his being in the employ of the corporation will not make them liable. Hooe v. Mayor of Alexandria, * 1 Cr. C. C., 98.
$ 2406. Where the fee of the street is in the adjoining lot holders, the state has an easement to improve and repair the street over its entire length and breadth, to adapt it to easy and safe passage. In making an improvement the city is the agent of the state, performing a public duty imposed upon it by the legislature; and persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill. Transportation Co. v. Chicago, 9 Otto, 635; S. C.,* 7 Biss., 45.
2407. Railways in streets.— Authority conferred upon a city to regulate the laying of railroad iron and the passage of railroad cars through the city relates to the construction of railroad tracks and the running of railroad cars through the city by incorporated companies whose cars are propelled by steam, and has no reference whatever to the construction or authorization of a street passenger railway within the corporate limits. (Citing Moses v. Railroad Co., 2 Ill., 522.) People's R. Co. v. Memphis R. Co.,* 10 Wall., 51.
§ 2498. A city ordinance forbidding the propulsion by steam, upon certain portions of the streets in the city, of any car, engine, carriage or other vehicle, is a lawful police regulation, which impairs no vested rights of the railway company.
It neither deprives the company of its property without due process of law, nor denies to it the equal protection of the laws. Railroad Co. v. Richmond, 6 Otto, 528.
$ 2409. A railroad company was authorized to construct its road between certain points in a city, and to move its cars by the use of steam, animals, or other mechanical power, etc. It was further provided that it should not construct its road on the streets without the consent of the city authorities. The city gave its consent, reserving the power to regulat the de scription of power to be used, to which condition the company assented under its corporate seal. Afterwards an ordinance was passed forbidding the use of locomotive engines within certain limits. Held, that the city had the power to prescribe the conditions, and that the ordinance was valid. New York, etc., R. Co. v. Mayor, etc., of New York,* 4 Blatch., 193.
$ 2410. An unrestricted power to make a grant or concession enables the party to make it upon conditions. Ibid.
§ 2411. Authority conferred upon a city “to grant privileges in the use and enjoyment of the streets" thereof does not empower the city to grant a street railway company the right to lay tracks and run street cars for twenty-five years in its 'streets. People's R. Co. v. Memphis R. Co.,* 10 Wall., 52.
§ 2412. Under a statute of Kansas no railway company can construct or operate its road through any incorporated city without first obtaining the assent of such municipal corporation thereto, Railroad Co. v. Leavenworth,* 1 Dill., 393.
$ 2413. Under the statutes cities in Kansas may prescribe, as conditions of giving their assent to the entrance of a railway into their limits, such lawful and proper terms as they may deem expedient; as, that the railway company shall build depot buildings of a good character at a specified place, and shall grade, riprap and pave the levee on and along which the right of way is granted; and the city may reserve to itself the right to take possession of the right of way upon failure of the railroad company to perform the conditions upon which it was granted. Ibid.
$ 2414. Use of street for levee and wharf purposes.- Water street, Keokuk, Iowa, may be used for levee and wharf purposes under municipal management and control. A building erected by a packet company for the receipt and temporary shelter and storage of goods, subject to municipal control, is a reasonable use of Water street, Keokuk, as a wharf or levee, as incidental to the requirements of navigation or shipping. Barney v. Keokuk, 4 Dill., 597.
$ 2415. Power to widen a street on the water side, and make a wharf and levee.- Under the charter of December 13, 1843, sections 14, 16 and 22, the city authorities of Keokuk, Iowa, representing the public, had the right to widen and improve Water street to any extent on the river side, by filling in below high water, and building wharves and levees for the public accommodation. Barney v. Keokuk, 4 Otto, 339.
§ 2416. Liability of an abutting owner for paving.– Upon a motion for judgment against the owner of town lots, liable for the expense of paving the street opposite bis lots, in pursuance of an order of the common council of the town, evidence that the paving was badly done was rejected. Alexandria v. Manderville, 2 Cr. C. C., 224.
$ 2417. Portions of a park made part of the street.— The common council of a city ordered the corner lines of a public park to be so adjusted as to be curved instead of square. This was done, making a portion of each corner a part of the sidewalk, and it was so used. Held, that this made such portions of the park a part of the public street, and for a negligent injury of a person upon it, the city was held liable. Mayor v. Sheffield, 4 Wall., i9t.
$ 2418. Power of Detroit to vacate or occupy streets. - Whatever authority the city of Detroit, as a corporation, possesses over Woodward avenue to dispose of or lease the same, must be derived from the statutes of the United States. Brig Empire State, Newb., 518.
$ 2419. As a municipal government, the city of Detroit has only power to regulate, and can only occupy or vacate a public street or highway dedicated as such antecedent to its existence as a corporation. Neither can the city be deemed to possess a riparian right unless as proprietor of the fee, Ibid.
SUMMARY — County warrants, SS 2420, 2421.— In Michigan, § 2422.- Suit against by alien
in federal court, $ 2423.– Assumpsit the proper remedy on a claim, $ 2424. - County order; no demand necessary, $ 2425.- Proof of existence, $ 2126. — Suits against, s 2427. Assessments for levee purposes; police power, SS 2128-2430.
$ 2420. County warrants, negotiable in form, are not negotiable paper in the sense that bona fide holders take them free from antecedent equities. Wall v. County of Monroe, Sš 2431-32. See § 2463.