Hartford Trust Co. v. Town of West Hartford ( 1911 )

The defendant assigns as error the finding of the trial court that the proceedings taken to establish the lost and uncertain bounds of Farmington Avenue were not taken in accordance with § 2083 of the General Statutes, in that the map of the highway was not prepared and exhibited, and notices of the hearing and of the decision of the selectmen were not given as required by the provisions of this statute.

Strict compliance with each of the enumerated steps of the statute was the condition of the validity of the entire proceeding. Failure to comply with any of the required steps would constitute a jurisdictional defect.Keifer v. Bridgeport, 68 Conn. 401, 405, 411, 412,36 A. 801. The plaintiffs' rights of property were involved, and could not be injured or destroyed save by "due course of law," after hearing had and opportunity given to be heard. Northrop v. Waterbury,81 Conn. 305, 309, 70 A. 1024; Nichols v. Bridgeport,23 Conn. 189, 208; Abbot v. Banfield, 43 N. H. 152, 155.

The statutory requirement in relation to the exhibition of the map, is permissive in terms but mandatory in effect. It says "may": it means "must"; for it recites, the selectmen shall cause a notice to be printed and sent to each proprietor, setting forth the time and place when the aforesaid map may be seen.

The obvious purpose of the statute was to afford proprietors the opportunity to see, from an inspection of the map, the relation the bounds claimed by the adjoining proprietors bore to the actual fences and bounds and the lines of the highway as originally laid out. With this knowledge the proprietors could protect their interests by making a suitable presentation of their claims to the selectmen, and by duly taking an appeal from their decision.

Procuring the claims of adjoining proprietors preceding the exhibition of the map was indispensable, yet so far as appears no attempt was ever made to obtain these. The map exhibited did not conform to the statute; it did not contain the actual fences and bounds, nor the bounds as claimed by the adjoining proprietors.

The south line of the highway upon the map, though believed by the selectmen to be as originally laid out, was in fact two and one half feet south of the true south line, and the map itself did not refer to any proceeding to establish lost and uncertain bounds.

The notice of the hearing did not contain a description of the map called for by the statute. Evidence was offered that the notice of the hearing as published was sent to some of the proprietors, but none that any notice properly addressed with postage prepaid was duly mailed to these plaintiffs. The written or printed notice to be sent each known adjoining proprietor might properly be sent by mail.

Proof of service of notice by mail should show compliance with the conditions of its existence, and show that the notice, properly addressed, with postage prepaid, was duly deposited in the mail. 29 Cyc. pp. 1119, 1123. The failure to send such a notice was fatal to the proceeding as against these plaintiffs.

The notice of the decision of the selectmen was given by mailing to each adjoining proprietor a marked copy of a newspaper containing an advertisement of the notice. This was ineffective as a legal notice. One cannot be charged with notice of what may be contained in the advertising columns of a newspaper, though the copy received by him be a marked copy. Clark v. Ricker, 14 N. H. 44, 48; Watkins v. Peck,13 N. H. 360, 373; United States v. Pinover, 3 F. 305, 308.

Moreover, no evidence was offered that such a paper, properly addressed, with postage prepaid, was duly mailed to any of these plaintiffs.

The evidence fully supported the finding as to what the map contained, and the sending and receipt of the notices.

We cannot agree with the defendant that the recording of the decision was constructive notice to these plaintiffs. In no event could the recording take the place of the notices required by the statute. Further, the decision as to these plaintiffs was a nullity, for without compliance with the statutory steps the selectmen were without jurisdiction to render it, therefore the recording of the decision did not validate it or make of it notice to any proprietor who had not been given the notices specified by the statute.

One other of the defendant's contentions remains to be noticed. It urges that "the plaintiffs, having had actual notice of the re-establishment proceedings and having failed for a period of approximately ten years to object thereto by way of appeal or otherwise," are estopped by laches from the equitable relief sought.

The finding disposes of this. The plaintiffs never had notice or knowledge of the re-establishment of the lost bounds until after the town had voted to "improve" the highway and the engineers had driven stakes indicating the line claimed south of the true south line of the highway. Seeing this, the plaintiffs immediately protested to the selectmen. Their opportunity to appeal from the re-establishment decision had been long since lost by lapse of time through no fault of theirs.

Assignments of error are limited to the claims of law made in the trial court; hence this defendant cannot avail itself of a claim of laches based upon the failure of the plaintiffs to act from the time they knew of the re-establishment decision, in the spring of 1909, until this action was begun on November 5th, 1909. If the defendant were in a position to properly make this contention the finding would conclude it. So far as appears the plaintiffs did not know of the proposed contract between the selectmen, the State and the contractor, before it was entered into, nor does it appear when such knowledge came to the plaintiffs. As soon as the plaintiffs knew of the proposed invasion of their rights they protested to the town officials; they could not be expected to anticipate that the town would disregard their protest and enter into a contract of the character of that disclosed by the record. There was no inexcusable delay in the protection of their interests; nor such a delay as to prejudice the defendant's rights in view of the protest made it. Hartford v.Mechanics Savings Bank, 79 Conn. 38, 41, 63 A. 658;Byrne v. Schuyler Electric Mfg. Co., 65 Conn. 336, 355,31 A. 833. Upon the facts found there was no duty resting on these plaintiffs to have secured an earlier intervention of judicial action; and without breach of duty there can be no laches. Allis v. Hall, 76 Conn. 322,334, 56 A. 637.

The rulings on evidence complained of are not ground of reversible error.

The offer of the defendant to prove the establishment of building lines in 1902-1904, was properly excluded. This evidence was offered to show that the south lines of Farmington Avenue corresponded with the south line of the re-establishment decision, and that the plaintiffs had notice of these building line proceedings. The time in which the plaintiffs could have appealed from the decision of the selectmen had long since passed, and for this reason the offer, for such a purpose, was immaterial and invited collateral inquiry.

For the purpose of proving the true south boundary of this avenue, a witness sixty-eight years of age, who had been born near the place in question and had lived there during his youth, was asked by the plaintiffs this question: "When you were a boy, how were these trees regarded with relation to the highway?" The witness replied they were generally considered the south boundary of the highway.

It would be difficult to support this question, either in its substance or its form, and the latter was not objected to. It is clear that its admission did not harm the defendant, since it subsequently offered evidence to prove, and claimed to have proved, facts in accord with the answer given.

The corrections of the finding should be denied; the evidence amply supports the finding.

There is no error.

In this opinion the other judges concurred.