Noyes v. Ward ( 1848 )

Storrs, J.

The several questions in this case wall be considered in the order in which they are presented by the motion.

1. The defendant does not question the validity, either of the appointment of the plaintiff, as a surveyor of highways, or of the by-law under which the latter justified the making and repairing of the side-walk where the assault complained of was committed, and which was admitted to be within his district. That by-law, after providing, that there should be annually appointed, by the court of common council of the city of Norwich, four highway surveyors, who should be resident, one in each of the four districts into which said city had been in said by-law divided,and that they should constitute a board of city commissioners, whose duty it should be to examine and remove all nuisances, encroachments, and incumbrances, upon the streets and highways in said city, and cause to be executed all the provisions of the charter and by-laws of said city, relative to the prevention and removal of such nuisances, encroachments and incumbrances, further provides, that said commissioners shall constitute a permanent board, which shall have the general direction of all matters relative to the high-streets and side-walks in said city; and that the said • ⅜ highway surveyors, each in the district in which he resides, sha.II have the particular care and superintendence of all highways, streets and side-walks, in said city, and shall execute all the directions of the board of commissioners and of the court of common council respecting the same; and that they shall have full power and authority, each in his district, as surveyors of highways, to make, maintain and keep in repair, all highways and streets in said city, subject to such direction as may be given, by the board of city commissioners, and under such regulations and directions as the court of common council may, from time to time, prescribe. It is insisted, that, under this by-law, the several surveyors of highways have no power to do any act whatever for the purpose of maintaining or keeping in repair the highways in their respective districts, without the direction of |he board of commissioners, or some regulation or direction of the court of common council, authorizing such act. We think that this is not its true construction. These highway surveyors are made subordinate to those bodies, in this respect, that they must execute all the directions that they deem it proper to give, in relation to the highways, streets and side-walks. Their power, however, as such officers, is not derived from those bodies, but is conferred by the by-law ; and that power is to make, maintain, and keep in repair, all highways and streets in their respective districts. The preceding clause, providing that they shall do this, subject to such directions and regulations as those boards may give or prescribe, is merely a restriction upon the powers which had been given to these officers, in the same sentence ; the effect of which is, not to make either of those boards the source of the power of such highway surveyors, or to require that there should be a direction from either of those boards before they should have any authority to act, but only to take from them their independent power of judging, in the execution of their duty, in those cases where either of those boards had deemed it proper to give directions. We do not think that it was intended, by this by-law, to constitute any difference between the surveyors of highways, who should be appointed under that by-law, and those appointed by towns under the general law of the state, as to their powers, excepting that the former were intended to be subject to be con-trouled by the boards of city officers mentioned in such bylaw, whereas the latter are subject to the controul of the town. The general law does not define the particular powers of the highway surveyors appointed by the towns, excepting as they are derived from their name, in connexion with the powers given to towns in relation to the making, maintaining, and repairing of highways ; but the powers of such highway surveyors are precisely the same as those expressly given in this by-law to the highway surveyors of this city, with the difference only, that they are respectively liable to be con-trouled by the bodies by whom they are appointed. Stat. tit. 49. sect. 17.

It has never been understood, that the highway surveyors of towns have no authority to act in the duties of their office, without a particular direction or regulation of the towns ap-appointing them ; and the inconvenience and injury, which might result from requiring such officers, in every case, where a highway is out of repair, to seek and obtain the particular direction of the town or city by whom they are appointed, before it could be put in order, constitutes a conclusive reason against such a construction of their powers as the defendant claims. The acts of the plaintiff, therefore, in relation to the side-walk in question, were not unauthorized, in consequence of no directions having been given to him in regard to it, by the board of city commissioners, or the court of common council, unless, as the defendant further claims, his authority, as a surveyor of highways, extended only to the other parts of the road. The streets and highways, however, embrace the side-walks, no less than the other portions of the road ; and unless these officers are restrained from exercising their powers over the former, by some particular provision of the charter or by-laws, we cannot perceive why it does not equally extend over both. If public necessity and convenience require, that there should be side-walks for the accommodation or safety of foot passengers, the same reasons exist why they should be made and kept in repair, as apply to the more central parts of the highway. But it is to be observed, that, in the third section of the by-law which has been mentioned, it is provided expressly, that “the said highway surveyors, each in the district in which he resides, shall have the particular and superintendence of all highways, streets and side-in said city ; and by that section, he is required to execute all the directions of the board of city commissioners, and of the court of common council, respecting the same. Then succeeds the provision that they shall have full power and authority, in their respective districts, as surveyors of highways, to make, maintain, and keep in repair, all highways and streets therein, subject to the direction and regulation of said boards ; thereby implying most strongly, that it was the design of that by-law, that the authority of these officers should extend equally to the side-walks and other parts of the highway. Nor do we think, as the defendant insists, that their general powers are abridged, by the third section of the amended charter of said city, which confers upon the court of common council “ power and authority, from time to time, as public convenience may require, to designate and fix the width, course, height, and level of all side-walks and gutters in and upon the streets and highways in said city.” Tnat section authorizes that body to exercise the controul provided in that section over the surveyors of highways in regard to the construction of side-walks, but does not otherwise affect their general powers as such officers.

If, therefore, the side-walkin question was such as the public convenience and necessity required, as the jury have found, a majority of the court are of opinion, that the plaintiff had a right to build and repair it, as he claimed to have done ; and that the charge on this point was correct.

2. The instruction to the jury, that they might consider the expenses of the former trial, in their estimate of the damages, is sanctioned by the case of Linsley v. Bushnell, 15 Conn. R, 236. where the rule on this subject was fully considered and settled.

3. The next point respects the charge of the court below, on the subject of the right of the public to the use of land as a highway, by what is termed a dedication of it, by the owner, for that purpose.

The defendant has suggested, rather than argued, before us, that the public cannot acquire a right to use the land of an individual for that purpose, in that mode; but that they must take the steps prescribed by the statutes relating to the laying out of highways. This court has never had this point brought directly before it for adjudication; and therefore, has never formally decided it. This is explainable only on the ground that it was not susceptible of a question. Numerous cases have been tried at the circuit, which depended on the right of the public to acquire the use of land for that, as well as other, purposes, by dedication, in which such right was uniformly conceded ; and it is not credible that it would not have been questioned in this court, if it could have been, with the least expectation of success. That property may be effectually dedicated, by the owner, to public uses, and to this particular use, as well as any other, admits, in our opinion, of no doubt. We consider this principle as too long and too well settled, by the authorities in the English courts, in those of several of the states of this Union, and in the supreme court of the United States, to require us, at this time, particularly to examine them, or the reasoning on which they are founded. A refer* ence only to some of the adjudged cases on this subject, is deemed necessary. Lade v. Shepherd, 2 Stra. 1004. Rex v. Lloyd, 1 Campb. 260. Rugby Charity v. Meriwether, 11 East, 376. Stafford v, Coyney, 7 B. & C. 257. (14 E. C. L. 39.) Jarvis v. Dean, 3 Bing. 447. (13 E. C. L. 45.) Woodyer, v. Hadden, 5 Taunt. 137. Cincinnati v. White, 6 Peters, 431. Hobbs v. Lowell, 19 Pick. 405. Abbot v. Mills, 3 Verm. 519. State v. Catlin, Id. 530. State v. Trask, 6 Verm. 355. Bryant's lessee v. McCandless, 7 Ham.pt. 2. 135. New Orleans v. United States, 10 Peters, 662. Olcott v. Banfill, 4 N. Hamp. 537. Rung v. Sheenburger, 2 Watts,23. Commonwealth v. Alburger, 1 Whart, 469. Pomeroy v. Mills, 3 Verm. 279. Cleveland w Cleveland, 12 Wend. 172. Rector v. Hart, 3 Miss. 448.

This doctrine rests on the intelligible, rational, and wholesome principle of the common law, that, wherever a person has made representations, or pursued a line of conduct, with a view to lead or induce others to adopt a particular course of action, and such representations or conduct have produced that effect, they shall be held to be binding and conclusive against him, and he shall not afterwards be permitted to retract or repudiate them, to the injury of those who have been induced thus to act. This is a principle of public policy and good faith — of the greatest importance — and of very general, if not of universal, application. This rule is thus clearly and broadly stated, by Mr. Greenleaf, in his treatise on Evidence, vol. 1. § 207. “Admissions, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person, whose conduct he has thus influenced. It is of no importance, whether they were made in express language to the person himself, or implied from the open and general conduct of the party. For, in the latter case, the implied declaration may be considered as addressed to every one in particular, who may have occasion to act upon it. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations.” The almost universal extent of this rule may be seen from the cases cited by Mr. G., and also in note 192 of Cowen & Hill to 1 Phill. Evid. 107. This principle has often been recognized, by this court. Brown v. Wheeler, 17 Conn. R. 345. Kinney v. Farnsworth, Id. 355. Roe v. Jerome, 18 Conn. R. 138.

Mr. Justice Thompson, in giving the opinion of the supreme court of the United States, in Cincinnati v. The lessee of White, 6 Peters, 431., where the subject of dedications to public uses is most thoroughly examined and clearly elucidated, speaking of the dedication there in question, which was that of a public common in the city of Cincinnati, after having shown, that all dedications of land to such uses, rest upon the same principle as the one which is applicable to dedications of public highways, says : “ After being thus set apart for public use and enjoyed as such,and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public and to those who have acquired private property, with a view to the enjoyment of the use thus publicly granted.” The courts have uniformly considered this as the ground on which the right by dedication rests. 2 Greenl. Ev. § 662. Hobbs v. Lowell, 19 Pick. 405., and cases before cited.

This being the principle on which dedications of land for public highways are sanctioned and enforced, it is obvious, that they are not affected, by the statutes which prescribe the mode in which such highways may be laid out and established. Those statutes -were not designed to take away or abridge the right which previously existed, of any person to grant or dedicate to the public, by his own act, a right of way over his land ; but only to provide a mode, by which the public may procure it to be appropriated for such a purpose, without or even against his consent.

The defendant, however, further claims, that, in order to establish in the public a right to the use of land as a highway, by dedication, it is requisite that they should have used it as such, adversely and uninterruptedly, and also for the period of fifteen years. This claim proceeds on the supposition, that the title by dedication is founded on the presumption of a grant; and that such presumption arises, in this case, as in other cases of incorporeal rights growing out of long possession, only after an adverse and uninterrupted enjoyment, and that for the period, in this stale, of fifteen years, in analogy to the statute limiting the right of entry on lands of which the owner is disseised. This, however, is an entire misapprehension as to the nature of the title by dedication, as is obvious from the explanation already given of the ground on which it rests. A dedication, as such, is not held binding, because it is presumed that there was ever a formal grant, by the owner of the land ; nor because the enjoyment of it, by the public, is considered as evidence of such a grant. 2 Greenl. Ev. § 662. Woodyer v. Hadden, 5 Taunt. 126. The enjoyment by the public, is not viewed as furnishing evidence of the acquisition by them of the right of such enjoyment, in any particular mode. Cincinnati v. White, 6 Peters 431. If that were the ground on which it is placed, there would perhaps be a serious difficulty in recognizing the acquisition of such a title, excepting by an enjoyment in the manner and for the time suggested by the defendant. But the acquisition, as be. fore stated, proceeds on a different principle, namely, that the owner, after having permitted the public to use his land for the purpose for which it is claimed to have been dedicated, under such circumstances that the public accommodation and private rights, supposed to be acquired in consequence of such permission, might be injuriously affected, by an interruption of such enjoyment, is held to be precluded from denying that the public have acquired a right to such use in whatever manner, on the ground that such denial would be, on his part, a violation of good faith. This doctrine, so far from proceeding on the ground that such enjoyment was adverse and in hostil-to the rights of the owner, supposes that it was with his assent. It has accordingly been uniformly held, that, where a title by dedication is set up, the use by the public must be shown to have been with the assent of the owner of the land. For, without evidence of such assent, it would not appear that it was the intention of the owner that his land should be devoted to that use ; and, independently of such an intention, he certainly should not be precluded, on principles of justice, from re-asserting his original rights in the land. Hence, the question in such cases, is, always, as to the intention of the owner in permitting the public to use his land for the purpose for which it is claimed to have been dedicated. 6 Peters, 431., and cases before cited.

It is very evident, from these views, and the doctrine on which the title by dedication rests, that it does not depend upon the length of time for which the public has had the enjoyment of the land. The length of such enjoyment is a circumstance, which constitutes proper, and usually very important, evidence, from which the assent and intention of the owner may be inferred ; and it may also tend to show whether the accommodation of the public and the rights of individuals might be injuriously affected, by an interruption of the use ; but "when it is shown, that the owner of the property has devoted it to the use of the public, by laying or leaving it out for that purpose, and that these consequences would result to the public and to individuals from such interruption, the question, whether he ought to be permitted to reclaim his original rights in the land, should not depend on whether he has permitted the public to use it for a longer or shorter period of time. Hence, it has also been uniformly decided, that the right of the public, in these cases, does not depend upon any particular length of possession. 2 Greenl. Ev. § 662., and cases before cited. Denning v. Roome, 6 Wend. 551. State v. Marble, 4 Iredell, 318. 1 Hill, 189-191. 9 Wend. 128.

This view of the subject furnishes an explanation of what is meant by the courts, when they speak of the length of time, during which it is necessary that land should be used by the public as a highway, in order to gain a right to it by dedication for that purpose ; and shows, that it was not intended to lay down an absolute rule of law," which required, in every case, a particular and invariable period of time, during which there must be such use, in order to acquire such right; but only, that it should be for such a length of time, that, under the circumstances, it should satisfy the minds of the triers, that it was with the assent of the owner of the land, and that the rights of the public and others would be injuriously affected, by permitting the owner to resume his original right to exclude the public therefrom. Each case, in this respect, depends on its own circumstances ; and it was only with reference to the particular cases before them, that the courts have spoken of the time during which the use of the public had been permitted to be continued. This explanation reconciles all the cases on this point, and shows that there is no ground for the impression, which has sometimes been entertained, that they are involved in confusion.

We think, therefore, that none of the exceptions to the charge, on this subject, are valid.

Whether that part of the charge in which the court below, in deference to what had been before ruled on the circuit, stated, that the mere use by the public of land as a highway, for any period short of fifteen years, would not be sufficient evidence of a dedication of it for that purpose, was not too favourable to the defendant, we are not called on to decide, in this case; and therefore, we express no opinion upon it.

4. The declaration of the defendant, as to the intention with which he deposited the stone in the ground, at what he claimed to be the West end of his ancient fence, did not accompany, nor wrns it a part of, that act; nor was it so connected with it as to characterize or explain it. It was merely a narrative of the transaction, by the defendant, to the witness, the next day after it was finished. It was, therefore, properly excluded. 1 Greenl. Ev. § 108.

5. Proof of genera] reputation was admissible, in this case, for the purpose of showing the existence and extent of the highway in question. 1 Greenl. Ev. § 128. § 139. And, in our opinion, the map or plan offered by the plaintiff, was properly received as evidence of that character. It was an ancient document, purporting to have been made by the committee, and therefore by the authority, of the ancient proprietors of the lands designated upon it, and was proved to have been found among the records of the town-elerk, which is the proper depository of the records and papers of those proprietors; and we think that the authorities justified its admission. Nichols v. Turney, 15 Conn. R. 101. Cowen & Hill’s note 477. to 1 Phill. Ev. 249.

A new tria! is not advised.

In this opinion Waite, Hinman and Ellsworth, Js., concurred.

Church, Ch. J.

Upon one of the questions discussed in this case, I have not been able to concur with my brethren ; and if it was one of less importance, I should not, in this manner, record my views upon it; but I esteem it to be a question essentially connected with the interests of all our cities.

That the city highway surveyors have power to repair side-walks in the city of Norwich, and to remove nuisances, encroachments and obstructions from them, I have no doubt. I find this power expressly given, by the by-laws of the city ; and perhaps this is incidental to their office, if it had not been directly conferred. But the question which I wish to examine, is, have they an authority, independent of the board of city commissioners and of the court of common council, to locate or lay out side-walks, to determine their width and elevation, and to construct them in such fashion as they may prefer? Upon a careful inspection of the charter of this city and its by-laws, I have not discovered this power.

It will be recollected, that it was not the mere act of the plaintiff, as highway surveyor, in repairing the side-walk, which caused this affray: this was connected with his previous act in laying it out, which he had done in opposition to the defendant’s will, and without any other guide than his own discretion, and had constructed it in just such a place and manner as he pleased. If he had no authority to do this, he had no right to repair it, to the injury of the defendant, and was a trespasser in doing so.

For some purposes, side-walks may be deemed to be parts of a highway. They are within the surveyed limits of the highway, and are intended to accommodate the public travel; but they are not necessary appendages of it, even in cities, much less in country villages. There are highways in every city where side-walks are not considered necessary, and are not constructed. And it is important, in the consideration of this question, to observe, that in this charter and code of bylaws, side-walks are treated as entirely distinct from highways and streets, as much so, as the public squares, public greens, public commons and burying-grounds, over which the surveyors have a superintendence ; and when side-walks are intended to be the objects of city legislation, they are, I believe, in every instance, specially named. Therefore, the power given to surveyors to repair highways, does not include the power of laying out and constructing side-walks.

The charter of the city is its constitution, and no by-law or regulation of the city can be valid, which is opposed to the provisions of the charter. The first allusion, which I find, to side-walks in the city of Norwich, is in the third and fourth sections of the amended charter of 1830, by which the whole power to lay out or designate side-walks, and fix their width, heighth, course and level, is conferred upon the court of common council. It is an important power, and one which cannot be delegated to individuals acting alone, as mere ministerial officers, as the surveyors of highways are; nor can it be taken away from the court of common council, by any vote or regulation of a city meeting.

The surveyors of highways, by the by-laws of the city, have the power of general superintendence, direction and repair of side-walks; but this is essentially different from a power to lay them out and fix their width, heighth, course and level. They have the same superintending power over the public squares, greens, commons, and public burial-grounds in the city, which they have, by virtue of the by-laws, over the streets and side-walks ; but it will not be claimed, that they have power to lay out such streets and public grounds, independently of the board of city commissioners, and of the regulations and directions of the court of common council. See by-law of July 14, 1843, sections 2d and 3d.

No by-law has authorized the city highway surveyors to lay out side-walks, or to determine their width, course, heighth and level, as this plaintiff has presumed to do, as I can learn, either from the import of the language used, or from any intention expressed. Such a power would subject every proprietor adjoining a street or highway within the limits of the city, to serious interruption in his communication with his buildings, grounds and fields, at the will of the surveyor alone, without a hearing, and without a remedy. And therefore it was, that the charter was careful to entrust this authority writh the court of common council, a deliberative body, elected by the citizens — the same body which alone had the power to lay out and establish streets, burial-places and public grounds. The by-laws have, indeed, as was very proper, conferred upon the surveyors the authority to repair side-walks, remove nuisances and encroachments from these and all public grounds, and to exercise over them a general superintendence ; and this is all.

I think, therefore, that the plaintiff, in assuming to construct a side-walk in front of the defendant’s grounds and buildings, which had not been established by the court of common council, and without their direction, was the aggressor.

New trial not to be granted.