Hawley v. Harrall ( 1848 )

Ellsworth, J.

It appears that Water street, in the city of Bridgeport, was laid out and established, in January 1846. The owners of property lying upon it, were notified and heard, and their respective damages were assessed, and soon after deposited with the treasurer of said city, in conformity to the provisions of the statute. Nothing remained but to direct, at what time the street should be opened. This was done, by an order of the 16th of March 1846, directing the street to be opened by the 1st day of April following. The damages assessed to individual proprietors, and among the rest, to this plaintiff', were deposited, as aforesaid, on or about the 1st of May 1846 ; and the plaintiff’ took his damages on the 21st of said month.

The first objection to the warrant, under which the defendants justify, and to the vote on which the warrant rests, is, that, at that time, to wit, the 5th of June, Water street did not exist, for the reason that the damages were not deposited in the treasury, for any of the proprietors, before the 11th of May; nor those belonging to the plaintiff, taken out, by him, before the 21st of May; — dates, as appears, subsequent to the 1st of April, at which time the street was to have been opened.

We think there is no force in this objection. It rests upon an assumption, to which we cannot yield assent, that the order of the 16th of March, was spent, by the mere lapse of time. We hold it was not spent, but was in force on the 11th and 21st of May; so that on those days, either the depositing of the damages with the treasurer of the city, or the reception of them, by the proprietors to whom they belonged, consummated all that was needful to perfect the laying-out of said street, or opening it for public travel. The statute does not say, at what time the sum due for damages shall be deposited in the treasury. It must be done before private property is taken; and it was so done, in this case, as we think, within a reasonable time. Besides, had there been an unreasonable delay, the plaintiff cannot be allowed to insist upon the objection ; for by receiving the money, he has waived the objection, if it existed. Is he to be permitted t0 l^e Pr0Pei'ty> as if nothing had been done, and like-to retain the money, the equivalent of the property, as (jue j^ra por jnjury suffered ? He must have known, ancj must be held to have known, the supposed difficulty, when he took the money out of the treasury, so that his act can be construed to be nothing less than a ratification of what was done by the city, and his full consent to have Water street opened for public use. Were this a transaction between man and man, no one would question the justice and fairness of such a conclusion.

Again, it is said, that the order of the 16th of March is void, because the plaintiff was not notified to be present at the meeting of the court of common council. Wffiere is the law that requires it ? We know of none ; nor has any been shown us. Nor is there any practice in our cities to sustain it. The proceeding of the 16th of March was not the laying-out of a street; nor preliminary measures to such an end; but an order for opening an existing street; and can not the city do this until they find who has left or placed obstructions in a street ? No one whose property was taken, or to be taken, upon the payment of the damages assessed, has any ground of complaint, if he is paid, and has due notice at what time the city decide to exercise their rights.

It is further said, that the warrant of the 6th of June, and the vote on which it rests, of the 5th of June, are void, for their generality. It is said no individual delinquent is named; no buildings are specified; every thing is left to the discretion of the officer. We think there is no force in this objection. This street had been laid out, by exact measure and definite bounds. Every building situated within its limits, was specified and appraised ; and this had become matter of record; and the said vote and warrant were predicated thereon. More definiteness, or more extended description, would be entirely useless and superfluous. The officer had no discretion; he is to clear out the street; all this he ought to do, and no more ; and should he, in the execution of his warrant, exceed these limits, he becomes a trespasser.

It is objected, that the vote and warrant provide, that the removal ordered, shall be done at the expense of the author of the nuisance. Well, this is authorised by the charter of the city; a provision entirely constitutional, and founded in the highest justice and fairness. The plaintiff has been paid for all the injury or loss which he might suffer, by the destruction or removal of this building; and now,if he will not remove it, or take it down, if it is not worth removing, after he has had due notice, we think he cannot complain, that it is done by the authority of the law, at his expense. However, no such difficulty or objection exists, in point of fact. This provision in the warrant is, in strictness, no part of its executive character, delegating more authority to the officer than he would have without it. The plaintiff experiences no injury. If the provision is wrong, he will have an opportunity to object to it, when, if ever, the city of Bridgeport shall attempt to collect from him these expenses. In the meantime, this part of the warrant has no effect upon him, or any of his rights. The city pay the money, and the officer keeps an account of it, for any future proper and legal purpose.

.Again, it is said, that the court of common council have not power to order nuisances to be removed from a street, circumstanced as this was; but that this duty belonged to the street commissioner. We do not so consider it. We hold it to be the duty, and at the risk of the city, to see that its streets are clear of nuisances and obstructions. If this street was legally established and opened, as this objection assumes, then the court of common council had full authority over it, and have done no more than it was their duty to do.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.