Benedict v. Pettes

The appeal raises the single question, whether the facts found show that at the time the land in controversy was sold to Mrs. Pettes there existed a lawfully established building line upon the same which prohibited the proprietor from building upon the front portion of the lot.

It is clear from the original provisions of the New Haven charter that it was intended that when such building lines were established the fact should appear upon the land records of the town. The written survey, containing a particular description of such line or lines, with the quantity of land on which the proprietor or proprietors are prohibited to build, provided for in § 32, was to be lodged with the town clerk and recorded by him. When this was done, the incumbrance created by the establishment of the line would appear of record in the land records of the town, and would be notice to those acquiring title to the land of the existence of the incumbrance. This accords with the purpose of our recording system.

Under § 13 of the original charter, the court of common council established the building lines. Section 32 directed the way of proceeding to designate and establish them. The Act of 1872 left with the court of common council the power of establishing the lines, but made more definite the method of procedure. Under that Act, when a building line is to be designated, the court of common council is to proceed by a committee of its own number appointed for that purpose. The duties of the committee are pointed out. They are to cause the survey in writing to be made. They are to give notice to proprietors of land to be affected. They are to make a report of all of their doings in the premises to the court of common council. The Act presupposes that the court of common council will decide whether building lines are to be established in any street before the matter of its designation is referred to the committee. For it is only when there is to be a designation that it is to be so referred. In other words, the matter of designation or establishing the building line is not to be left to a committee with power. It requires that the report, showing all that the committee has done, shall be accepted and approved by the common council, and recorded in the records of the city, before the line is legally designated, or the assessments therefor are due or collectible. Nothing is said in this Act concerning the recording in the town clerk's office of the written survey describing the line, and for that reason it is claimed that such recording was not required subsequent to the passage of the Act of 1872.

It was required by § 32 of the charter of 1869. So much of that section as is inconsistent with the Act of 1872 is repealed by the latter. Any portion of it which is not inconsistent with the Act of 1872 (and the language of the repealing clause indicates that the legislature understood that some portion was not) is not repealed. No inconsistency is shown in the fact that the latter Act is silent as to the matter of recording the survey in the town clerk's office. That Act deals only with the matter of designating the line. Section 13 of the charter of 1869 gave the common council power to establish building lines, and § 32 indicated, in a general way, the proceedings required to designate and establish them. The Act of 1872, as already stated, deals only with the proceedings to be taken to designate the lines, and § 3 of the Act provides that when these proceedings have been pursued, and the committee's report accepted by the common council and recorded in the city records, the "line or lines shall be deemed to have been legally designated," and the assessments of benefits then, and not till then, become payable and may be enforced. This is not saying that the lines are established, that is, made permanent, as against all persons. It is only saying that as between the parties to the proceeding the lines are deemed to be lawfully designated for the purpose of enforcing the payment of benefits assessed and for prosecuting appeals, under § 5 of the Act, by persons claiming to be aggrieved by such designation or assessment. When the designation is finally determined, the line is to be established and made permanent by causing the written survey to be recorded in the town clerk's office. This was required by the original charter, and we find nothing inconsistent with that provision in the Act of 1872. If this was requisite to the legal establishment of the line, the city could not prevent Mrs. Pettes, as an innocent purchaser, from building beyond the claimed building line if she saw fit. It is found that she and the plaintiff had no knowledge of the claimed existence of this line until she had sold the property to one of the other defendants. The proceedings in the court of common council did not in such case create an incumbrance upon the land as against her.

As there was no record of the survey filed and recorded in the town clerk's office, the claimed building line constituted no lien on the defendants' land, and the case was properly decided.

There is no error.

In this opinion the other judges concurred.