Healey v. City of New Haven.

tried to the court, upon a general denial, before Hovey, J. Judgment for the defendant, and motion for a new trial by the plaintiff. The case is sufficiently stated in the opinion.

D. R. Wright and L. E. Munson, in support of the motion. 1. The city had the right, and it was its duty under the charter, to grant relief, by providing full compensation for the injury. City Charter, secs. 16, 27, 28, 29. The statute law of the state clothed the city with full power to make compensation, if its charter powers were doubtful. Gen. Statutes, p. 236, sec. 31. The failure of the city to have the damages ascertained, and to provide the means to pay the same, was an omission of duty which renders it liable.

2. The repeal of the statute did not affect the rights of the plaintiff that had vested under it. Whatever rights he had during its life, he now has, regardless of its repeal. They are vested rights. "The right of the owner to damages is determined by the law in force at the time of the entry upon the public improvement, and cannot be affected by subsequent legislation." City of Elgin v. Eaton, 83 Ill., 535. See also Healey v. City of New Haven, 47 Conn., 305.

3. The city, through its board of road commissioners and other city officials, while the law was in force upon our statute book, having promised compensation to the petitioner if he would acquiesce and let the work go on, is estopped from interposing a defence inconsistent with those promises and assurances, after he had acquiesced and relied in good faith upon them and allowed the work to go on. Pence v. Arbuckle, 22 Minn., 417; Continental Bank v. Bank of Commonwealth, 50 N. York, 575; Blair v. Wait, 69 id., 113; Kinney v. Farnsworth, 17 Conn., 361. The plaintiff relying in good faith upon the assurances of compensation given him by the city officials, in connection with the statute law then in force, was justified in not taking an appeal from the orders of the common council changing the grade of the street, and should not be prejudiced by such omission.

Healey v. City of New Haven.

4. The acts and declarations of agents of corporations are admissible against them. Toll Bridge Co. v. Betsworth, 30 Conn., 380; Goodwin v. U. S. Ann. & Life Ins. Co., 24 id., 601. Officers or agents of municipal corporations, representing and acting on their behalf bind the corporations by their acts and declarations. Mitchell v. City of Rockland, 41 Maine, 365; Glidden v. Town of Unity, 33 N. Hamp., 577; Smith v. Prop. of Lowell Cong. Meeting House, 8 Pick., 178. Parol evidence of acts and declarations of town officers has always been received in this state. Hine v. Stephens, 33 Conn., 497; Hoyle v. Town of Putnam, 46 id., 56. This court, in Healey v. City of New Haven, 47 Conn., 315, substantially admits the admissibility of all the evidence necessary for the case. We rest this case within the fair intendment and meaning of that decision, and if we cannot stand within it, supported by other authorities upon the brief, then we go to the wall, with the declaration of this court that "there is a great wrong without a remedy."

H. Stoddard, contra.

1. It is conceded that there is no common law liability for this change of grade, and no common law right in the plaintiff resulting therefrom. Healey v. City of New Haven, 47 Conn., 305; Transportation Co. v. Chicago, 99 U. S. Reps., 641; 2 Dillon Mun. Corp., (3d ed.) § 990, note 1. To take his case out of the operation of this rule, the plaintiff alleges that a certain statute affects it, and that he has rights growing out of the action of the board of road commissioners.

2. The road commissioners had no power to bind the city by any vote, contract, or representation with regard to the matter. The matter of compensation to the plaintiff was not within their jurisdiction; it belonged to the common council and the board of compensation. City Charter, sec. 27. Nor could a representation as to what the law was, made by them or any other city official, affect the city. Upton v. Tribelcock, 91 U. S. Reps., 50; Starr v. Bennett, 5

Healey v. City of New Haven.

Hill, 303; Lewis v. Jones, 4 Barn. & Cress., 506; Rashdall v. Ford, L. Reps., 2 Eq., 750. It is absurd to suppose that the city of New Haven guaranteed that a statute would not be repealed. The court below properly ruled out the parol evidence offered of the promises and representations

of the commissioners.

3. No act was done while the statute allowing damages for change of grade was in force. The common council ordered this change August 14th, 1874, and that order was complied with by the board of road commissioners, September 24th, 1874. The grade was then fixed and has never been changed. How can the fact that another hearing was given the parties in the spring of 1875 affect the matter? The statute allowing damages was repealed June 24th, 1875, and the work of grading was not commenced until August 2d, 1875. All that is claimed to have been done while the statute was in force, was to give the parties another hearing, and a vote "re-affirming" the order of September 24th, 1874. That order never was rescinded or modified; its execution was simply delayed. It is true that an order was made on the 10th of June, 1875, reaffirming the former order, but that re-affirming order was not necessary.

4. But if the plaintiff has any rights under the repealed statute, he must pursue the remedy given by that statute. The statute provides that the damages to be awarded under it "shall be ascertained in the manner provided for ascertaining damages done by laying out highways." That mode was an assessment, first by the board of compensation and then by the Superior Court on appeal. City Charter, secs. 27, 30. "The remedy, therefore, for a consequential injury, resulting from the state's action through its agents, if there be any, must be that, and that only, which the legislature shall give. It does not exist at common law." Transportation Co. v. Chicago, 99 U. S. Reps., 641. See also Hovey v. Mayo, 43 Maine, 332; 2 Dillon Mun. Corp., (3d ed.) 686.

5. It is no answer to say that the authorities have not

Healey v. City of New Haven.

acted in the matter, even if the plaintiff has a vested right to have his damages assessed. (1st.) It does not appear that they have admitted or refused to act. (2d.) If they have, mandamus will lie to compel them if the right exists, and that is the exclusive remedy. 2 Dillon Mun. Corp., (3ded.) §§ 831, 993; Reock v. Mayor &c. of Newark, 33 N. Jer. Law, 129.

6. The plaintiff's right to an assessment of damages resulting from the change of grade, having been created wholly by statute, fell with its repeal. Cooley's Const. Lim., 384.

CARPENTER, J.-The plaintiff claims to have suffered damage in consequence of a change in the grade of the street on which his property is situated. The law of this state is so that he has no remedy unless the peculiar circumstances of the case make it an exception to the rule.

The case shows that the common council in August, 1874, ordered the change of grade; pursuant to which order the board of road commissioners soon after established the grade. In March following the plaintiff petitioned the common council to annul the order; and on that petition the case was opened for a re-hearing before the road commissioners. The result is not expressly stated; but from the statement of facts as claimed by the plaintiff, and which he offered to prove, it appears that the order fixing the grade was affirmed and that the improvement was subsequently made.

The seventh and eighth paragraphs of the plaintiff's complaint are as follows:

“7. That at the time said grade was established by said city under said order of 1874, to wit in June, 1875, and in the months of April and May, 1875, said city, by its mayor, corporation counsel, board of road commissioners, and other officials of said city, represented, promised and assured the complainant that if he would not appeal from said order changing said grade, or otherwise oppose the execution of the same, but allow the work to go on, he

Healey v. City of New Haven.

should be fully compensated in money by said city for all the damages he would sustain by reason of the changing of said grade; that said promises and representations were made, and said assurances given, in view of a public statute of the state allowing such compensation to be made; that said promises and assurances were made and given while said statute law was in force, and before and while said work by said city was being done upon said street under and by virtue of said order.

"8. That the complainant, believing in the truth of and relying in good faith upon said promises, assurances and representations by said city officials, and having satisfied himself of the existence of said statute allowing compensation to be made, neglected to take an appeal from the order establishing said grade, as he otherwise would have done but for said statute and said promises and assurances to him made as aforesaid."

Evidence to prove these allegations was offered by the plaintiff, and on objection was excluded by the court.

These allegations were pertinent and were a material part of the plaintiff's case as he presented it. The rejection of the evidence was directly in conflict with the decision of this court in Adams v. Way, 32 Conn., 160. trial must be advised unless the court can see clearly that the allegations if proved, would not, in connection with the admitted and proved facts in the case, give the plaintiff a good cause of action.

From January 1st to June 24th, 1875, the following statute was in force: "When any owner of land adjoining a highway, or of any interest in such land, shall sustain damage to his property by reason of any change of the grade of such highway by the town, city or borough in which such highway may be situated, such town, city or borough shall be liable to pay to him the amount of such damage, to be ascertained in the manner provided for ascertaining damages done by laying out or altering highways therein." Gen. Statutes, p. 236, sec. 31. This statute, however, was not in force when the improvement was first ordered, nor when the work was done.