Crawford v. City of Bridgeport ( 1918 )

Where the land of an individual is taken in invitum for public use, under the provisions of positive law, every requisite of the statute must be complied with, and this must appear on the face of the proceedings for taking the land. Nichols v. Bridgeport,23 Conn. 208; Edwards v. Stonington CemeteryAsso., 20 Conn. 466, 476. See also New Milford WaterCo. v. Watson, 75 Conn. 237, 242, 52 A. 947, 53 id. 57. Clearly there never has been a proper layout of the street extension. The charter of the defendant city requires that if, after a hearing, "the common council shall resolve to make any such public improvement, it shall appoint a committee, whose duty it shall be to make a layout of such public improvement, and to report in writing its doings to the common council, which report shall embody a survey and particular description of any such public improvement. If such report shall be accepted and approved by the common council, it shall be referred to the board of appraisal of benefits and damages for action by it." Special Laws of 1907, p. 518, § 59. The finding discloses that the report of the committee as to this purported layout was signed and made by them before their appointment. It appears that no action whatever was taken by the committee after they were appointed. The layout of this highway as it was to be extended was one of the essential steps to be taken by the city to meet the requirements of the statute under which the city was bound to act. To lay out a highway is to locate it and define its limits. A survey and particular description by some person or committee duly appointed and authorized to act could do this. Gregory v. Bridgeport, 52 Conn. 40, 43, 44. The preliminary survey and maps made at the instance of the officers of the city, may have facilitated the work in making this public improvement, but that alone, without proper action by the committee after their appointment, was not sufficient to establish a lawful layout of this highway, nor was it a substantial compliance with the express provisions of the statute relating to this subject.

Another serious objection raised by the plaintiff to the validity of these proceedings, is the neglect of the board of appraisal to cause a notice of their proceedings to be filed in the office of the town clerk. The charter provides: " . . . Before proceeding to assess benefits and damages for such public improvement the board of appraisal of benefits and damages shall cause a written notice setting forth the names of the persons owning or having an interest in any land, so far as disclosed by the land records, to be affected by such public improvement, together with a general description of such land, to be filed in the office of the town clerk. Such notice shall be recorded by the town clerk in a volume to be specially kept for such purpose and the name of each person included therein shall be separately indexed. Such notice shall name the person so affected as of the date when it is filed with the town clerk. Such notice shall be signed by a majority of the board of appraisal of benefits and damages, and the description of the land therein contained shall be sufficient if it shall indicate approximately the frontage of such land upon any public street. . . . No proceedings hereafter taken for the assessment of benefits and damages shall be effective except as to the persons so named in the notice filed as aforesaid with the town clerk; nor shall any amendment thereof constitute notice of any proceedings theretofore taken to any person who shall, prior to such amendment, acquire any interest in any such land." Special Laws of 1917, p. 845, § 8.

It is not always easy to determine from the statutory provisions in a given case whether the matter of filing a copy of the proceedings is a prerequisite to the assessment. There is no difficulty, however, in the case here presented, as the charter clearly provides that this notice, to be effective, must be filed before proceeding to assess benefits and damages. The statutory requirements as to notice and the record thereof are manifestly important, and they are in harmony with the well-settled policy of our law that every man's title to his real estate, so far as practicable, shall appear of record. It was competent for the legislature to prescribe the manner and formalities by which the title to lands of this kind might be transferred from the proprietor and be secured for public uses; and when it provided the manner in which such transfer should be accomplished, as has been done by the sections of the charter above recited, a compliance with the requirements prescribed is just as essential, in order that the owner may be divested of title, as the execution of a deed of conveyance would be in the transfer of real estate from one person to another. Gardiner v.Tisdale, 2 Wis. 153, 185, 60 Amer. Dec. 407, 412.

The defendant contends that "the plaintiff by appearing before the board of appraisal and making no claim there as to the alleged invalidity of the prior proceedings, was estopped from claiming in the Superior Court that such proceedings were illegal." If these proceedings were instigated as a collateral attack upon the validity of this assessment, the doctrine of estoppel might be seriously considered. Generally speaking, to constitute estoppel the following elements must be present: "(1) There must have been a representation or concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to whom it was made must have been ignorant of the matter; (4) it must have been made with the intention that the other party would act upon it; (5) the other party must have been induced to act upon it." 2 Words Phrases (2d Series) p. 337, and cases there cited upon this subject.

Not one of the essential elements of estoppel can be found in connection with the plaintiff's appearance before the board of appraisal. It is not claimed that the plaintiff had any knowledge of these irregularities when he appeared before this board. Under such conditions it cannot be said that he knowingly concealed material facts with an intention that the other party should act upon them. Neither does it appear that the defendant city has been deceived or prejudiced because the plaintiff failed to make the claim before the board of appraisal that this assessment was invalid because of the irregularities then existing in the proceedings. This is not a case where the plaintiff stood by and withheld his objections until the municipality had incurred great expense in making a public improvement, and then by a collateral attack attempted to invalidate an assessment. It here appears that the plaintiff, by a proper remedy within the time limited by law, has by appeal made a direct attack upon the validity of this assessment.

Much that we have just said in relation to the matter of estoppel is applicable to the defendant's claim "that the plaintiff by taking an appeal to the Superior Court waived any irregularity or defect in the prior proceedings relative to said public improvement." In this connection it may also be stated that a waiver "is the intentional relinquishment of a known right." An examination of the plaintiff's appeal, now before us, does not disclose any acts or conduct upon his part showing an intention of renouncing any right that he might have had to contest the validity of this assessment. In fact the contrary appears.

This case is unlike Manners v. Waterbury, 86 Conn. 573,86 A. 14, upon which the defendant relies. TheManners case was not one involving the right to take a man's land by eminent domain proceedings. The municipality in that case was simply attempting to enforce the payment of an assessment made for the benefit of the plaintiff's property which did not touch the proposed highway at any point. The difference between the powers to be exercised in the two cases clearly distinguishes the Manners case from the present one.

There is no error.

In this opinion the other judges concurred.