Bartlett v. City of Bangor

Citation67 Me. 460
PartiesCHARLES H. BARTLETT, et als., appellants, v. CITY OF BANGOR. GILBERT ATWOOD, et als., appellants, v. CITY OF BANGOR.
Decision Date15 January 1878
CourtSupreme Judicial Court of Maine (US)

ON AGREED STATEMENT.

APPEALS from decisions of the city council of Bangor, on the question of damages for laying out a street in extension of First street.

The proceedings are all admitted to be correct. The title of the appellants, as tenants in common, of the premises taken, is not called in question, except as hereinafter stated. All claim under the will of the late Wm. Emerson, who died in 1860. The premises were formerly the property of Isaac Davenport, and constituted a part of the lot which contained in all nearly two hundred acres, bounded upon Penobscot river on the east, and extending back about one mile. While owned by him he caused the front part of the whole lot, extending back about half way to the rear line, to be laid out into house lots, with streets to accommodate, the streets being two extending back to the river, one on the northern side known as Union street and the other very nearly through the centre of the lot, and known at first as Centre street, and afterwards as Cedar street. At right angles with these, and crossing the whole lot, were several streets known respectively as Pleasant Summer, Main, First, Second, Third, Fourth and Fifth streets. A plan of the laying out was made by Z. Bradley, in 1829 (recorded July 20, 1849, in Penobscot registry of deeds, vol. second, page 21 and 22 of plans,) and sales of the lots immediately commenced; so that prior to 1850, the principal part of all the lots were sold lying between the river and Fifth street. Among the lots thus sold prior to 1850, were all the lots on First street except one, all the lots on both sides of said street south of Centre or Cedar street, and four of the lots north of Centre street being so sold to Wm. Emerson and Isaac Farrar in 1835; and Farrar in 1836, conveyed his part to Emerson. In 1850-'51, an extension of the lotting of the Davenport lands so as to embrace all the balance of the whole was made, and a plan of the whole dated March 24, 1851, was made, adopting the Bradley plan so far as it went, and the latter plan, (being known as Z. Bradley's, extended by Wm. Coombs) was recorded November 7, 1854, in said registry, vol. second, pages 33 and 34 of plans. On both plans, First street was laid down alike, and conforming with the location and laying out as adopted by the city in the proceedings appealed from in these cases.

Wm. Emerson having paid one-half the consideration for the purchase made in 1835, and being unable to pay the balance, was released from further payments, and reconveyed one-half the lots to the Davenport heirs, every alternate lot being reconveyed. In 1851, by deed dated May 7, delivered July 12, 1851, the Davenport heirs reconveyed to Emerson the lots which he had conveyed back to them lying south of Cedar street, so that he again became owner of all the lots on both sides of that street, south of Cedar or Centre street, the lots on both sides of the same street, north of Cedar street being owned and occupied by different parties as they still are, the lots being most of them occupied as residences. First street, from Union street to Cedar or Centre street, was laid out and adopted by the city as a legal street in 1836, the laying out being in accordance with the Bradley plan, and proceedings in 1835 and 1836, being made a part of the case.

In 1854, by deed, dated May 8, and delivered on twenty-fifth, the Davenport heirs conveyed by quitclaim deed to Emerson all their right, title and interest in and to First street, as laid down on the plan.

On April 13, 1875, proceedings were commenced to lay out First street from Cedar street southerly, and by due course of proceedings, the laying out was completed on May 13, 1875, and street established, the appellants being allowed one dollar damage for the taking of their land; and this appeal was thereupon taken.

It appeared by testimony introduced by appellants, that as early as 1835, and until opening of street in 1875, a fence was erected on the south side of Cedar street, extending continuously from the corner of Second street down to Main street; thence down Main street to the Barker & Davis lot, crossing First street, and also enclosing that part of Davenport square which lies south and west of these lines, that part of Davenport square thus enclosed having been conveyed by the city to Emerson, deed dated May 8, 1856, the land enclosed being used as a pasture, also that there was a large gravel bank upon the lot thus enclosed, through which First street, as laid out in 1875, runs.

The plan makes a part of the case, and that part of them copied that lies east of Fifth street. All the lots conveyed by Davenport and by his heirs were conveyed by numbers, as laid down on plan.

Sometime after 1856, Emerson being then the owner of all the Davenport land in the plot between Main and Second streets, south of Cedar street, excepting the lot at the corner of Second and Cedar streets, caused said plot to be relotted, and a street laid out through the centre thereof, from Main to Second streets, and said relotting was adopted in the map of the city of Bangor made under the direction of the mayor and committee on streets, by order of the city council, in 1862, and then and now publicly exposed as the city plan in the city hall, and so much of said plan is to be copied as embraces the plot referred to and adjoining streets and lands.

A. W. Paine, called by defendants, testified, subject to objection, that he was agent for Davenport heirs since 1850, and has made all the sales since made of their lands in the city; also that he was appointed as special guardian to sell and convey the fractional shares belonging to the minor heirs; that soon after his appointment he sold the lots in 1851 to Emerson, as already detailed. Afterward, in 1854, Emerson desired to know the terms on which the heirs would convey or release their interest in First street, south of Cedar or Centre street. He remarked in substance that he owned all the lots on both sides of the street, and would like to have that. I told him the fee of the land was valueless, as every one who owned a lot on the plan had a right of way over it, and when the city saw fit to lay it out for a street, we could get no damage for it, but as there was a valuable gravel bank upon it, that was worth something, as we could work it until the city took the street. We finally agreed upon $100, as the price for which he should have the deeds, and the heirs and myself as guardian, executed the deeds already introduced. According to the rates at which the other lands were sold, the land embraced by the street would have been worth some $1000 or $2000. All the streets named above have been adopted by the city, and laid out according to the plan, except Union street, which slightly varies in its course from the plan. The fences spoken of were built after Emerson and Farrar first bought the land, and were never varied with any change of the title, thus remaining the same through all the changes of the title, the land being generally used as a pasture.

The cases submitted to the full court were whether upon so much of the foregoing statement and proof as is legally admissible, the appellants were entitled to more than nominal damage. If so, the cases were to be set down for hearing at nisi; otherwise the appeals to be dismissed with costs.

The following diagram is referred to in the opinion.

(Image Omitted)

TABLE

F. A. Wilson & C. F. Woodard, for the appellants.

T. W. Vose, city solicitor, for the defendants.

WALTON J.

First street in the city of Bangor, as originally laid out, in 1829, by the then owner of the land, extended southwesterly from Union street to Cedar street, and across Cedar street into the adjoining territory, as indicated upon the diagram.

That portion of First street lying between Union and Cedar streets was laid out and accepted by the city in 1836. That portion of it lying southwesterly of Cedar street was laid out and accepted by the city in 1875. The only question is whether the owners of the land thus taken for the extension of First street, in 1875, are, under the circumstances stated in the report, entitled to more than nominal damages. We think they are not.

When the owner of land within or near to a growing village or city divides it into streets and building lots, and makes a plan of the land thus divided, and then sells one or more of the lots, by...

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