City of Bangor v. Peirce

• Decision Date: 07 June 1910
• Citation: 76 A. 945,106 Me. 527
• Parties: CITY OF BANGOR v. PEIRCE.
• Court: Maine Supreme Court

76 A. 945

106 Me. 527

CITY OF BANGOR

v. PEIRCE.

Supreme Judicial Court of Maine.

June 7, 1910.

(Syllabus by the Court.)

Report from Supreme Judicial Court, Penobscot County.

Action by the City of Bangor against Anna C. Peirce, administratrix, etc., under the provisions of Rev. St. c. 23, § 37, to recover the assessments on certain lots of land on Franklin street, Bangor, made on account of widening said street. Plea, the general issue, with brief statement as follows: That neither the said Laura Hayford in her lifetime, nor the defendant as administratrix with the will annexed of the estate of said Laura Hayford, as aforesaid, ever was indebted to the plaintiff as alleged. When the action came on for trial, the following admissions were made:

"It is admitted that there was an authorization of this suit by the city council of Bangor.

"It is admitted that the street has been opened and that the damages have been paid.

"It is admitted that the assessment was legal and in due form upon land held by Laura Hayford as trustee.

"It is admitted that the claim was duly filed in the probate office against the estate of Laura Hayford."

At the conclusion of the evidence, the case was reported to the law court, to render such judgment as the law and the evidence require. Judgment for plaintiff.

The declaration in the plaintiff's writ is as follows:

"In a plea of the case, for that, whereas, on the 12th day of December, A. D. 1905, upon the petition of thirty-four taxpayers and residents of said city, the city council of said city ordered the street engineers of said city to lay out a widening of Franklin street in said city; and whereas, the said street engineers gave due notice of their intention to lay out said widening on the 30th day of December, A. D. 1905, and on said 30th day of December, A. D. 1905, said street engineers met and proceeded to lay out said widening, and after hearing all persons on the questions of damages, awarded Laura Hayford, trustee, the sum of $30,000 as full compensation for the land taken for said widening, and assessed a portion of said sum so awarded, to wit, the sum of $22,500, upon the lots adjacent to and bounded on said street, other than those for which damages are allowed, and did assess upon Laura Hayford, under the name of 'Laura Hayford, Trustee,' the sum of $8,250.07, she owning land bounded upon said street and being benefited thereby;

"And, whereas, on the 9th day of January, A. D. 1906, the city council of said city accepted the report of said street engineers and established said laying out as made by them in their report, and ordered notice to be given to all persons that said city council would meet on the 29th day of January, A. D. 1906, to give a hearing to all persons interested in the question of betterments; and, whereas, due notice having been given, said city council met on the said 29th day of January, 1906, heard all parties on the question of betterments, and finally established and confirmed said assessments as reported by said street engineers; and, whereas, the city clerk of said city, having recorded the assessment apportioned and established as aforesaid, gave due notice on the 31st day of January, A. D. 1906, to each owner and proprietor of said lot or parcel of land so assessed of the amount assessed against it; and, whereas, said city has paid to the owner of the land taken for said widening the sum of $30,000, being the amount awarded, and has entered upon and taken possession of said land for the purpose of widening said street: Wherefore, by reason of all of which acts and proceedings by said city in the premises, the said Laura Hayford became indebted to said city in the sum of $8,250.07, with interest thereon at twelve per cent per annum from the said 29th day of January A. D. 1900, as for money paid, laid out, and expended by said city for the benefit of said Laura Hayford, which sum the said Laura Hayford, in consideration of the premises aforesaid, promised to pay plaintiff on demand, as by statute in such case made and provided.

"And plaintiff avers that on the 21st day of November, A. D. 1908, being within eighteen months after the said Anna C. Peirce had filed notice of her appointment in the probate court as administratrix with the will annexed as aforesaid, and at least thirty days before the commencement of this suit, the claim herein declared on, a copy of which is hereto annexed, was filed in the probate court according to law; yet neither the deceased in her lifetime, nor since her decease has the said Anna C. Peirce, ever paid the same.

"And plaintiff further avers that twenty months has not elapsed since the defendant filed her notice of appointment as aforesaid in the probate court.

Bangor, Me., Nov. 21, 1908. Estate of Laura Hayford, to City of Bangor, Dr.

Highway Department.

1 908. For assessmeng made January

29, 1906,

on account of widening of Franklin

street franklin street, Lot westerly side of and buildings, with the storehoustby Kenduskeag bounded southerlyng on Franklin stream and measuri;t. Amount asstreet about 110 fee

$ 498 92

Lot easterly side of Franklin street, bounded northerlyby Kenduskeag stream, with buildings. measuring on Franklin streetabout 275 feet. Amount assessed.

8,250 07

$ 8.748 99

Interest for 2 years 9 months, 24 days, at 12%

2,957 15

$11,706 14

"Also for that the said Laura Hayford, at Bangor, on the 29th day of January, A. D. 1906, being indebted to the plaintiff in another sum of fifteen thousand dollars for so much money before that time laid out and expended by the plaintiff for the use of the said Laura B. Hayford at her request, in consideration thereof, then and there promised the plaintiff to pay the same on demand; yet neither the said Laura B. Hayford in her lifetime, nor since her decease has the said Anna C. Peirce, administratrix with the will annexed, ever paid the same, although plaintiff on the 21st day of November, A. D. 1908, being within eighteen months after said Anna C. Peirce filed notice of her appointment in the probate court as administratrix of said Laura Hayford with the will annexed as aforesaid, and at least thirty days before the commencement of this suit filed the claim herein declared on, being the account hereto annexed in the probate court according to law. And plaintiff further avers that twenty months has not elapsed since the defendant filed notice in the probate court of her appointment as aforesaid.

Bangor, Me., Nov. 21, 1908.

Estate of Laura Hayford, to City of Bangor, Dr.

Highway Department.

1908. For assessment mane January

29, 1906

on account of widening of Franklin streetanklin street, Lot westerly side of Ftind buildings, with the storehouse and Kenduskeag bounded southerly by; on Franklin stream and mensuring Amount asstreet about 110 feet.

$ 498 92

Lot easterly side of Franklin street, bounded northerly by Kenduskeag stream, with buildings, measuring on Franklin street about 275 feet. Amount assessed.

8,250.07

$ 8.748 99

Interest for 2 years, 9 months, 24 days, at 12%

2,957 15

$11,706 14

"Yet, though often requested, Said defendant has not paid said sum, nor any part thereof, but neglects and refuses so to do, to the damage of said plaintiff (as it says) the sum of fifteen thousand dollars."

Argued before EMERY, C. J. and PEABODY, SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ.

Donald F. Snow, Charles A. Bailey, and Taber D. Bailey, for plaintiff.

E. O. Ryder, for defendant.

EMERY, C. J. By statute (Rev. St. c. 23, §§ 33-37, inclusive) provision for widening streets, etc., in cities is made substantially as follows, viz.: When the city council widen any street and decide that damages should be allowed therefor, they may apportion a part or the whole of such damages, as to them seems fit, upon the lots adjacent to and bounded on such street. Before such apportionment or assessment is made, public notice is to be given to all persons interested. Any person not satisfied with the amount for which he is assessed can have the assessment upon his land determined by arbitrators. If the assessment finally fixed on any lot is not paid, the lots may be sold, etc. And by section 37, "if said assessments are not paid, and said city does not proceed to collect said assessments by a sale of the lots or parcels of land upon which said assessment is made, or does not collect, or is in any manner delayed or defeated in collecting said assessments by a sale of the real estate so assessed then the said city, in the name of said city, may maintain an action against the party so assessed for the amount of said assessment, as for money paid, laid out and expended, in any court competent to try the same, and in such action may recover the amount of such assessment, with twelve per cent. interest on the same from the date of said assessment, and costs."

Acting under the above statute, the city council of Bangor duly wideued Franklin street allowed $30,000 for damages caused thereby, and apportioned a part of said damages upon certain lots adjacent to and bounded on Franklin street. The lots so assessed had been conveyed to Laura Hayford by deed, reciting that the consideration was "paid by Laura Hayford, of said Bangor, as she is trustee under the last will of William B. Hayford, late of said Bangor, deceased," and that the conveyance was made to "the said Laura Hayford, trustee, her successors in said trust, heirs and assigns, forever," with habendum to "the said Laura Hayford, trustee, her successors in said trust, heirs, and assigns, forever." There was in the deed no other suggestion that she was not to have the land in absolute fee simple. The assessment upon this land by the city council was made against "Laura Hayford, trustee," January 29, 1906. She did not appeal from the assessment, nor did she pay the assessment during her lifetime up to her death, March 20, 1907. The assessment not having been paid, nor any other measures to collect it having...