Kirtland v. City of Meriden

In one important particular these two cases are unlike; but they haye been argued together, and are similar in eyery respect except one.

The city of Meriden seems to have proceeded according to ^its charter in widening the.highway in front oí the respective premises of the petitioners. They have both regularly appealed from the assessment of damages, agreeably to the law at the time of the appeal, and we think the subsequent legislation on the subject of assessments and appeals does not repeal the former law, so as to affect these appeals, or the proceedings by virtue of which damages have been re-assessed. *114Nor do we see reason to doubt the regularity of the proceedings whereby that portion of highway in front of the premises of the petitioners for which damages were re-assessed has been discontinued. So that the only question between the petitioners and the city is as to the effect of the discontinuance upon the claim for the damages assessed. In regard to that, if we had no statute on the subject the petitioners would be entitled to their damages, the discontinuance notwithstanding ; for the discontinuance proceeds upon the idea that a perfect legal highway had come into existence by the operation of the proceedings laying it out. By these proceedings a right of way was taken from the petitioners and vested in the public, and for this right of way the petitioners were entitled to compensation, and the subsequent discontinuance, however speedily it may follow the lay-out, cannot affect the right to compensation. Such would be the rule independent of statute, but the 38th section of the Act concerning Highways and Bridges provides, that if the discontinuance takes place before the highway shall' be opened and worked, the assessment becomes void, and the owner in lieu of the assessment may recover the actual damages he may have suffered, in an action on the case founded on the statute.

The only remaining inquiry then is, whether the highway which by these proceedings was laid in front of the premises of these parties was opened and worked before the discontinuance. In respect to Mr. Kirtland, the finding clearly shows that it had been so opened and worked, and therefore he may recover the damages assessed to him. That finding appears in full in the statement of the case, and need not be here repeated.

In respect to Mr. Tait, the finding in his case clearly shows that the highway in front of his premises had not been opened and worked, and therefore that the statute does apply to his case, and he cannot recover his assessment, but must be left to his remedy on the statute. The finding appears in full in the statement of his case, and although the city had done many things on the old highway in front of Mr. Tait’s .premises by way of preparation for the opening and working of the *115ground taken by the city, yet the appellant had not constructed the sidewalk on the land to be taken.for the alteration, nor had his fence been removed. Nothing indeed had been done by the city or by Mr. Tait on the land taken by way of opening it or working it. And we cannot regard the preparatory work done in front of other .premises, or in front of Mr. Tait's premises on the old highway, as an opening and working of the highway within the meaning of the statute.

The counsel for the city argued that the report of the committee who re-assessed the damages in Mr. Kirtland’s case was ambiguous in using the word “ personal,” as applicable to the benefits which would accrue to Mr. Kirtland by the widening of Main street in the manner adopted by the city. It does not appear however that the committee failed in fact to give the city the full advantage of whatever benefits would ’ accrue to Mr. Kirtland, nor does it appear that Mr. Kirtland derived any benefit from the ^alterations which are not properly described by the word “ personal.” Under these circumstances we cannot set aside the report on account of the use of that word, and the petitioner does not claim that the benefits thus assessed should not be deducted from the damages.

Our advice therefore is that judgment be rendered in favor of Mr. Kirtland to recover $500, that being the damage assessed to him deducting benefits. And that' in Mr. Tait’s case judgment be rendered in favor of the city.