Terry v. City of Hartford , 39 Conn. 286 ( 1872 )

PARK, J.

We discover no errors, of law in this record. The questions discussed on the trial are mainly questions of-fact. It is claimed that a land-owner through whose property a highway is laid out cannot be assessed for special benefits if damages are allowed him; .that he cannot be both benefited and damaged at the same time in relation to the same property ; that where the benefit to the land is equal to the value of the land taken, the land owner cannot be said to be damaged at all. This is true as a result. If A and B have running accounts against each other on book, and they are desirous to know which is indebted to the other, on the balance of accounts, the fact is to be determined by casting up the account of each against the other ; ascertaining how much A is indebted to B by B’s account, and in like manner how much B is indebted to A by A’s account, when the object of the investigation will be accomplished by subtracting the one amount from the other. Should it be discovered that the amount of both is exactly the same, it is true that it could not be said as a result that either was indebted to the other. Although this would be true as a result, still it would be equally true that each was indebted to the other if the account of either was alone considered. Suppose in such a case an auditor should report that A was indebted to B on book in the sum of one thousand dollars, and that B was indebted to A on book to the same amount, would the court have any difficulty in understanding the report and in deciding the cause ? So here, no matter whether the damages exceed the benefit, or the benefit exceeds the damages,'whatever course maybe taken to ascertain what effect the laying out of the street had upon the appellant’s land, the injury must be considered by itself, and must be treated and called, as it is called, damages; and the special benefit to the land by an increase of its value in consequence of the laying out of the street, must likewise be considered by itself, and must be treated and'called, as it is called, benefits ; and more especially must this be true if one set of triers is sent out to ascertain and report how much injury is caused to the land by the laying out of the street, and another to ascertain how great will be the benefit to the land when the street shall be constructed. These two different investigations have nothing in common. They are wholly independent of each other. The one deals with loss, and the other with gain. There is nothing therefore in the fact that the appellant was allowed damages for the incumbrance imposed upon his land by the laying out of the street. The charter of the city requires that the damages should be ascertained independently of the benefits, and it is not to be supposed that the benefits were' taken into consideration in ascertaining their amount, but on the contrary, the case finds expressly that the damages allowed are the entire damages. They make up the sum total of the injury to the land in consequence of this highway; and whether it can properly be said that the land was injured to that extent when a large amount of benefit was at the same time conferred upon the land, is of no importance so long as the action of the city authorities is easily and unmistakably understood.. If it be said that under the charter of the city there are no benefits to be assessed unless the benefits exceed the damages, the recent case of Trinity College v. The City of Hartford, 32 Conn., 452, decides the contrary, and settles the question.

Again, it is said that the case finds that the lands of the appellant are not benefited by the laying out of this street unless they can be used in connection with the lands of the adjoining owners, and that therefore, whatever might be his benefit m fact arising from such annexation, it is not the subject of assessment.

This raises another question of fact, whether, all things considered in connection with this land that have a tendency to increase or diminish its value in consequence of the opening of this street, it is on the whole benefited or not; and if benefited, ■ to what extent. No doubt the fact upon which the appellant relies in this part of the case, is an important one to be considered in determining whether the property was benefited or not; and we may presume that its importance was duly considered by the triers. But when we consider that here is land that would be benefited to an amount of more than thirty-six hundred dollars by the laying out of this street, should the annexation be made, and the land adjoining would likewise be benefited to a large amount under the like circumstances, and that no benefit would be conferred upon either tract so long as they remain the property of different proprietors, is it reasonable to suppose that there can be any serious obstacle to prevent the one owner from selling and the other from buying, when so great an advantage would result to both from such sale and purchase?' A consideration of this character no doubt had its proper effect in the determination of the question whether the land was benefited or not, and the extent of that benefit.

We think there is no error in the judgment complained of.

In this opinion the other judges concurred.