Keating v. MacDonald , 73 Conn. 125 ( 1900 )

In justification of the act complained of, the defendants pleaded the resolution and order of the common council directing them to remove the building in question as an obstruction to public travel upon the highway, and as a nuisance. One of the plaintiff's replies was, that having moved the building to that place by permission of the common council, with the intention of placing it upon the lot at Hallett Street, and having learned that said lot "was not available for that purpose," the board of common council, "although there was no good reason for so doing," refused to permit her to move the house to the lot on Arctic Street, and that the defendants "willfully and unnecessarily destroyed the house, after notice of her willingness to move it, or pay the expense of moving it, to the Arctic Street lot." The principal ground of the demurrer to this reply was that the common council had a legal right to refuse such permission, whether there was a good reason for so doing or not.

If we may regard the overruling of this demurrer as simply a decision by the trial court that the action of the common council may have been so manifestly unreasonable and unjust that it might be reviewed and held to be void, it may be sustainable; but it is unnecessary to decide that question, since we think the court erred in its rulings upon the claims of law made by counsel, after the defendants had pleaded over and the case had been heard upon its merits, by which the court held in effect, upon the facts found, either that the action and order of the common council was unreasonable, or that the order had not been properly executed by the defendants.

The order was properly executed. The order of the common council under which the defendants acted did not give them a discretion to remove the building to the lot on Arctic Street. It was definite in its terms, and directed the defendants, in case the plaintiff failed to comply with the order, "to remove forthwith said buildings from the highways of this city." The removal of the building along Pembroke and Arctic Streets had been already prohibited by the refusal of the plaintiff's second application.

It was not the duty of the defendants to move the building upon the adjacent vacant lot, since the plaintiff had neither requested it nor obtained the right to move it there; nor to move it to the lot on the corner of Hallett Street, since the plaintiff had decided not to place it there and apparently had not obtained the right to place it there.

The order of the common council, by the resolution of July 18th, was lawful and valid. It was not only within the power of the city to make such order, but it was a plain duty which it owed to those who had occasion to use these highways, to immediately remove this building which, from the unreasonable length of time it had remained in the streets, had become an unlawful obstruction to public travel and a common nuisance. Burnham v. Hotchkiss, 14 Conn. 311;Hawley v. Harrall, 19 id. 142, 152, Ely v. Parsons, 55 id. 83, 99; Wood on Nuis. § 250.

Section 41 of the charter of the city of Bridgeport empowers the common council to make orders not inconsistent with law, relative to the removal of obstructions and nuisances in highways and "the removal of buildings upon or through the same." Section 71 prohibits the moving of any building through any of the public streets of the city except by license of the common council, and a city ordinance provides that the application for such license shall state the precise locality to which the building is to be removed, and the streets through which it is to be conveyed, and that no person receiving such license shall be deemed to have permission to remove the building through any street not designated in his permit. Charter and Ordinances of the City of Bridgeport, 1898, pp. 30, 50, 205.

The legislature having thus given to the common council the exclusive right to grant permission to move buildings in the streets of the city, and the power to order the removal of obstructions and nuisances from the streets, their action in the matter before us must be regarded as final, unless it was so unreasonable or unjust as to be inconsistent with law.

It is claimed that the action of the common council was unreasonable in not permitting the plaintiff either to move the building to the lot on Arctic Street, or ordering the defendant to move it there, after the plaintiff, under a proper license, had placed the building in the highway and had conveyed it to the corner of Pembroke Street.

The plaintiff alleges in her reply that it was unreasonable to refuse her such permission; and under the pleadings she assumed the burden of proving such facts as would show that the action of the city authorities was unreasonable. In the absence of proof to the contrary, it is to be presumed that the common council acted lawfully in a matter within its jurisdiction. If it was not unlawful to deny the plaintiff's application for permission to move the building through Pembroke and Arctic streets, it was not unlawful to refuse to direct the defendants to so move it.

When the plaintiff's second application of July 10th was refused, the facts before the common council, as we read the finding, were these: The plaintiff's large building had completely obstructed public travel in one of the streets of the city for several weeks. After the injunction was removed the plaintiff consumed ten days in moving the building to the corner of Pembroke Street, when with reasonable dispatch the building could have been moved to that point from its original location in two days. After July 6th the plaintiff made no effort to remove the building to the lot on Hallett Street to which she had received permission to move it, although she could then have purchased it. It did not appear that the building could not be placed upon that lot. The plaintiff alleges in her reply that this lot was not available for the purpose. The finding is that she discovered on July 6th that it "was not suitable for her purpose." It did not appear that she could not procure a lot near the corner of Pembroke Street upon which the building could be placed, nor did it appear that she owned the lot on Arctic Street to which she desired the building to be moved. To have permitted the building to be moved to the Arctic Street lot would have been to permit that street or Pembroke Street to be obstructed for a period of at least two days longer than was required to take down the building; and possibly would have subjected the residents and travelers upon those streets to inconveniences similar to those already suffered by the people upon Maple Street, and for as long a time.

Between July 10th, when her second application was refused, and July 23d, when the work of taking down the building was commenced by the defendants, the plaintiff seems to have made no effort to remove the building to any other place than the Arctic Street lot, although three days were given her by the final order within which to remove it, and but one day was required to remove it from its position at that time to the Hallett Street lot.

The facts found show good reasons for the refusal of the plaintiff's second application, and that the order of the common council for the removal of the building from the highway was reasonable and valid.

The court erred in overruling the defendants' claims that the common council acted within its power and discretion in refusing said second application, and that the defendants were not liable, having acted under and within said order; and in sustaining the plaintiff's claim that no good reason had been shown for the refusal of said second application, and that therefore the defendants were liable for the destruction of said building.

There is error and the judgment is reversed.

In this opinion the other judges concurred.