19 Conn. 250 (Conn. 1848), Noyes v. Ward

Citation:19 Conn. 250
Opinion Judge:Storrs, J. Church, Ch. J.
Party Name:Noyes v. Ward.
Attorney:Hill and C. F. Cleveland, (with whom was Waite also,) in support of the motion, Strong and G. Perkins, contra
Judge Panel:In this opinion Waite, Hinman and Ellsworth, Js., concurred.
Court:Supreme Court of Connecticut
 
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Page 250

19 Conn. 250 (Conn. 1848)

Noyes

v.

Ward.

Supreme Court of Errors of Connecticut.

July, 1848

Where a by-law of the city of Norwich, after providing for the appointment of four highway surveyors, one of whom should reside in one of the four districts into which the city was divided, and that they should constitute a permanent board of commissioners, having the general direction of all matters relative to the highways, streets and side-walks in said city, declared, that each surveyor, in the district in which he resided, should have the particular care and superintendence of all highways, streets and side-walks in said city, and should execute all the directions of the board of commissioners, and of the court of common council respecting the same, and should 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 directions as might be given, by the board of city commissioners, and under such regulations and directions as the court of common council might, from time to time, prescribe; it was held, 1. that the power of these surveyors, was not derived from the board of commissioners, or the court of common council, but was conferred by the by-law; 2. that though those boards had a controuling power, by direction or regulation, when they thought proper to interfere, yet no specific direction or regulation, by either board, was necessary to enable the surveyors to perform their official duty of making and keeping in repair the highways and streets in their respective districts. [The Chief Justice dissenting.]

The powers and duties of such surveyors, in regard to highways and streets, extend to side-walks, the latter being embraced in the former.

Where it appeared, in an action of assault and battery, that there had been a former trial of the cause, and by reason of the death of one of the jurors, no verdict was rendered; it was held, that the jury might properly take into consideration the expenses of such former trial, in estimating the damages.

A highway may be established, by a dedication of the land, by the owner, to the public, for that purpose.

The doctrine of such dedication rests on the principle of the common law, that where a person has made representations, or pursued a line of conduct, with a view to 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.

The statute prescribing the mode in which highways may be laid out and established, was 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.

In order to establish in the public a right to the use of land as a highway, by dedication, it is not requisite that they should have used it as such, for the period of fifteen years, nor that the public use should have been adverse and uninterrupted.

Where a party, having taken up and removed an ancient fence, put down a stone in one of the post-holes, where it remained; and the next day, he declared, that he put it there as a bound; it was held, that this declaration was not so connected with the act done as to constitute a part of it; and was, therefore, inadmissible evidence for such party.

Where a party offered in evidence a paper, purporting and appearing to be a map or plan, representing certain lots and highways, surveyed and laid out, by a committee of the proprietors of the land, in June 1770; which paper was recently found among the books, papers and records of such proprietors; it was held, that such paper was admissible as evidence of a highway thereon laid down.

This was an action of trespass vi et armis, alleging an assault upon the plaintiff, beating and wounding him; to which the defendant pleaded the general issue, with notice of special matter in justification.

The cause was tried at New-London, September term 1847, before Storrs, J.

On the trial, the plaintiff claimed to have proved, that the defendant assaulted and beat him, in the manner alleged in the declaration. He also adduced in evidence the by-laws of the city of Norwich, which were admitted to have been approved and published as required by the charter, and to have been in full force at the time of the transaction in question.[a] He then offered evidence to prove, and claimed that he had proved, that before the commission of the acts complained of, he was duly appointed and sworn a commissioner of streets and highways in the city of Norwich, and surveyor of highways in the first district in that city, embracing the locus in quo; that the plaintiff, in the discharge of his duties as such commissioner, and by the advice and direction of the mayor of the city, had constructed a side-walk on the North side of a highway running Easterly and Westerly, on each side of which the defendant was the owner of the land in fee; that the plaintiff had constructed such side-walk against the barn-yard, gates and fence of the defendant, making it of the same height and level as against the lands of the adjoining proprietors, and not higher than the public necessity and convenience required; that after this side-walk was so made, the defendant, claiming that the land was his, and that the public had no right of way there, dug up and removed the earth of the side-walk in front of his gates, and thereby made a cavity therein of such depth as to endanger the persons of travellers thereon; that in order to protect and save from injury the persons of travellers on such side-walk, the plaintiff was filling up the cavity to the height to which he had so built it, declaring that this was his object; and that he was acting in his capacity of commissioner, when the defendant committed the alleged assault and battery upon him.

There was no proof that the plaintiff did such acts, under or by virtue of any order of the court of common council, or board of city commissioners of the city; nor that the side-walk had ever been designated or fixed, by the court of common council, either as to its width, course, height or level.

The defendant claimed to have proved, that when the side-walk was so constructed, and from that time until after the alleged assault and battery was committed, he was the owner in fee, not only of the land adjoining the side-walk on the North, but of the land on which the side-walk was made, and denied that it was a part, or within the limits, of any public highway. He also claimed to have proved, that the side-walk to built by the plaintiff, was made so high against the defendant's gates as to prevent the opening of them, to enable him to pass in and out of his barn-yard, with his cattle or otherwise, and higher than the public convenience and necessity required; and that in committing the assault and battery complained of, the defendant did no more injury to the plaintiff than was necessary to prevent him from filling up said cavity.

The defendant also claimed, that the plaintiff, by virtue of the office to which he had been appointed, had not, under the charter or by-laws of the city, any right or authority, either with or without the order or direction of the mayor of the city, to construct said side-walk on the public highway, within his district, nor to repair it, by filling up said cavity, in the manner he claimed to have done.

The plaintiff, on the other hand, claimed, that, by virtue of his office, he had a right and authority, under the charter and by-laws, to build, maintain and keep in repair such side-walks as the public convenience and necessity required in the public highway within said district, and to remove all nuisances from the highways and side-walks therein, without any order or direction so to do, either from the mayor or court of common council, or board of commissioners of the city; and that if the plaintiff, having been duly appointed to said office, had built said side-walk, within the limits of an open and public highway, within his district, and the side-walk so built by the plaintiff was required by public convenience and necessity, he had a right to build the same, and also to maintain it and keep it in repair, and to remove all nuisances therefrom; that if said cavity rendered the side-walk impassable, or dangerous to travellers thereon, he had a right to fill it up, and restore the side-walk to its former condition; and that the defendant, consequently, would not be justified in resisting the plaintiff in so doing.

Each of the parties requested the court to charge the jury in conformity to their respective claims.

The court charged the jury as requested by the plaintiff; and further instructed them, that if the side-walk, as built by the plaintiff, was not such as the public convenience and necessity required, he had no right to build or repair the same, as he claimed to have done; and that, in that case, the defendant would be justified in preventing him from so doing, by the use of as much force as would be necessary for that purpose.

It appeared, that a previous trial of this cause had been had, at its term in March 1847; and that, after the taking in of the evidence, and before the argument of the cause, one of the jurors died, in consequence of which, the trial proceeded no further; and no verdict was rendered. The plaintiff now claimed, that the expenses of that trial might...

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