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Healey v. City of New Haven.

We think the law is so that the statute as it existed when the improvement was undertaken or entered upon, must determine the rights of the parties. The presumption is that it was undertaken in view of the statute, the parties respectively accepting the privileges which it conferred and the liabilities which it imposed. Eaton v. City of Elgin, 83 Ill., 535; Healey v. City of New Haven, 47 Conn., 305. A contrary rule might operate as a trap. This case is a good illustration. The plaintiff claims that he ceased opposition for the reason that the statute gave him damages, whereas if the law had been otherwise he might have resisted successfully. If now a subsequent repeal of the statute is to deprive him of his remedy, it might operate very unjustly.

The question then recurs, when was this improvement entered upon? Was it when the common council first ordered it, or when that order was affirmed ?

The change of grade was ordered September 24th, 1874. If the work had been done under that order without any intervening action by the common council or the board of road commissioners, the improvement would have dated from that day. But in March following, before anything had been done under the order, when the statute was in force, and while the common council had the whole matter in its control, the plaintiff's petition to revoke the order was referred to the board of road commissioners for a hearing. The effect of that reference was to suspend the operations of the order. For the time being it was practically annulled, and it was an open question whether the grade should be changed, until final action on that petition. Such action was had on the 10th of June, when the order of September 24th was affirmed. The affirming vote revived the operation of the order and set the work in motion. That vote was passed while the statute was in force. They considered the question of changing the grade in view of its provisions, and determined to make the change. They thereby assumed all the burdens which the statute imposed. Whatever may have been the form of the vote, it was equivalent in its effect to an order of that date to change the grade.

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Healey v. City of New Haven.

The case was argued to some extent upon the theory that the liability of the city was on the ground of promises made by the city officials. But the motion shows that the plaintiff did not offer to prove any express promise to pay the damages; it was only an assurance that the law was so that he would be entitled to have damages assessed. We are satisfied that the city cannot be held liable on that ground. A knowledge of the law was open to both parties. An expression of opinion as to what the law was by the city authorities could raise no liability. Even an express promise would not, for they were agents of the city only in a qualified sense; their agency was confined strictly to their official duties; and it was no part of their duty to create a liability by promises or otherwise. The law, and not the assurances given, imposed the liability.

The assurances were unimportant, except as they tended to show that both parties proceeded in view of the statute, and with the expectation that damages would be paid ; and that affects only the equities of the case.

The 31st section of the charter (Special Laws, vol. 6, p. 487,) gives the plaintiff a right of appeal from any order of the common council or of the board of road commissioners changing the grade of the street. Now if he refrained from appealing from the order of June 10th, 1875, on the ground that the law gave him damages, the equities of the case are certainly pretty strong; not that those equities would of themselves, independently of the statute, give a right of action, but being founded on the statute, they should incline the court to give his claims a favorable consideration. And they afford an additional reason why the repeal of the statute should not affect this case.

A question is made whether the defendant is liable in this form of action. The statute in terms makes the city liable for the damages, " to be ascertained in the manner provided for ascertaining damages done by laying out or altering highways therein." The defendant contends that when a statute creates a right and gives a remedy, that remedy alone must be resorted to. The principle invoked

VOL. XLIX-51.

Healey v. City of New Haven.

is more especially applicable to cases where the statute makes an act lawful in itself unlawful ; but it is not applicable to this case, for the reason that the statute gives the plaintiff no remedy. It simply points out a method by which the city may ascertain the amount of damages. The charter (Special Laws, vol. 6, p. 486, sec. 28,) provides that damages in cases of laying out or altering highways shall be assessed by the board of compensation or by the common council. Section 30 provides that the sum assessed shall be paid to the landowner, or, if he refuses to receive it, shall be deposited for him in the city treasury. In all this the city must clearly take the initiative; it is its duty to move in the matter. Now, suppose it does move, and having ascertained the damages, refuses to pay. What remedy has the plaintiff? The statutes being silent, the law supplies the remedy. There is certainly no occasion to resort to a mandamus, for nothing remains to be done but to pay the money. But suppose the city refuses to have the damages assessed, as in this case. What then is the remedy? The defendant answers, a mandamus. Not necessarily. That writ lies only when there is no other remedy. We think an action for the damages is a more direct, more complete, and less expensive remedy. The proceeding by assessment is not a remedy for the plaintiff. He cannot institute it nor control it; and if instituted by the city he cannot compel its continuance. It was in no sense designed for his benefit, but is rather in the nature of a proceeding against him, or against his property in rem. The constitution prohibits the taking of private property for public use without compensation. It being necessary to take private lands for highways, this proceeding was designed as an expeditious and inexpensive method of ascertaining the damages to be paid. The theory is that the damages shall be ascertained and paid before the land is taken. But the city cannot escape responsibility by omitting this proceeding and taking the land in the first instance. Should it attempt to do so, it would be no answer to a suit that the statute makes provision for ascertaining

Healey v. City of New Haven.

the damages. In such a case the plaintiff would hardly be required to resort to a mandamus.

The statute provides the same remedy for both casesthe original taking of the land, and the subsequent damage to the adjoining land by changing the grade, not for the land-owner, but for the party taking the land or doing the damage. The cases are analogous, the only difference being that in Connecticut the damages in the latter case, in the absence of a statute to the contrary, are presumed to have been estimated and paid when the land was originally taken. The cases are so nearly alike that the same principle should apply to both.

The city may and should resort to the statutory mode of assessing damages in all instances, and its failure to do so will be no defense. If it takes land or makes improvements, thereby causing damage where damages are provided for, without complying with the statute, its proceedings are unlawful. It cannot with good grace turn the plaintiff out of court and say to him, you ought to have resorted to a mandamus to compel us to do our duty.

If a recovery in this action results injuriously to the city it is not through any fault of the plaintiff. But it is not certain that it need be so. There is no difficulty in estimating damages, deducting the benefits; and we do not now see that this suit will of itself prevent the city from asessing damages and benefits in respect to other parties.

Of course the city cannot be deprived of its right to resort to the statutory proceeding without its consent; but having waived that right, as it has in this case, it cannot complain of an ordinary action at law.

A new trial is advised.

In this opinion the other judges concurred.

Rowland v. Smith.

EDWARD S. ROWLAND vs. JAMES M. SMITH AND ANOTHER.

The plaintiff as accommodation endorser had been compelled to pay a

protested note on which the defendants were prior accommodation endorsers. He held as security a mortgage made by another party for the accommodation of the makers, which proving defective he released it and the mortgagor made a new mortgage to a savings bank for a loan of larger amount than the debt, of which loan the plaintiff received and retained the exact amount of the protested note, but there was no agreement as to how the money should be applied. In a suit against

the defendants as endorsers of the note, it was held1. That on all the facts, which were reviewed by the court, the note must

be regarded as paid by the money received by the plaintiff from the

security. 2. That if the money was to be regarded as only security in his hands, to

which the defendants would become entitled in equity on being compelled to pay the note, the law would not allow him to recover of them the amount of the note and leave them to recover back from him the money in his hands, but would require him to apply the money directly to the payment of the note.

[Two judges coming to a different conclusion upon the facts and dissenting as to the result.)

ASSUMPSIT against the defendants as endorsers of a promissory note, by the plaintiff as endorsee; brought to the City Court of the city of New Haven, and, by appeal of the plaintiff, to the Superior Court. Tried to the court on the general issue, with notice, before Sanford, J. Facts found and judgment rendered for the plaintiff, and motion for a new trial by the defendants. The case is sufficiently stated in the opinion.

J. W. Alling and S. H. Wagner, in support of the motion.

C. S. Hamilton, contra.

CARPENTER, J. Crofut & Co. applied to the plaintiff to aid them in procuring a loan of $2000. He agreed to indorse their note if Elias Smith, the father-in-law of Crofut, would mortgage his farm to secure him. He indorsed the note and received the mortgage.

The defendants were

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