City of Hartford v. Poindexter

• Decision Date: 08 March 1911
• Citation: 79 A. 79,84 Conn. 121
• Court: Connecticut Supreme Court
• Parties: CITY OF HARTFORD v. POINDEXTER et al.

79 A. 79

84 Conn. 121

CITY OF HARTFORD

v. POINDEXTER et al.

Supreme Court of Errors of Connecticut.

March 8, 1911.

Appeal from Superior Court, Hartford County; Lucien F. Burpee, Judge.

Action by the City of Hartford against Charles E. Poindexter and others to foreclose an assessment lien for street improvements. Judgment for plaintiff, and defendants appeal. Reversed.

The finding shows that the plaintiff, to prove that the assessment on account of which the lien in question was filed was legally made, introduced in evidence a record of the proceedings and vote of its court of common council passed April 1, 1871, and approved by the mayor on the 4th day of April. This is spoken of as Exhibit D in the finding, and is as follows:

"The highway committee in the matter of laying out a street and building lines on both sides of Albany avenue, the street lines from Edwards street westerly to the city line, and building lines from Edwards street to Garden street 4 feet back, and from Garden street to city line 30 feet back, beg leave to report for the final action of the court of common council. Said street and building line is described in the resolution establishing the same as follows, viz.: 'Resolved, that the court of common council of the city of Hartford will lay out, open and establish a new street or highway as a substitute for the street now opened and known as Albany avenue, the south line of the same to commence at the present southwest corner of Albany avenue and Edwards street, and thence running westerly in a straight line 2,010 feet to a point 18 feet westerly of the dividing line between land of James and Jonathan Goodwin, said line passing through a point 7.5 feet southerly from the southeast corner of the Goodwin Tavern House, so called, owned by James Goodwin, thence on a line curving northerly on a radius of 1,910 feet, 533 feet to a point 378 feet east of Jonathan Goodwin's lane, thence curving southerly on a radius of 2,805 feet, six hundred and eighty feet, to a point on land of said Jonathan Goodwin, thence on a straight line tangent to said curve and passing through a point one inch south of the southwest corner of the house owned and occupied by Edward Kenyon, also through a point 140 feet south of the southeast corner of the slaughterhouse owned by F. W. & D. Adams and opposite said slaughterhouse, thence curving to the south on a radius of 1,910 feet, 818 feet, to a point on land of James Goodwin, thence running westerly in a straight line tangent to said curve 1,150 feet, to the present south line of said Albany avenue at its intersection with Park river. The north line of said street to be parallel with the above-described south line and 75 feet distant therefrom at all points, and the highway committee be and they are hereby directed to take the necessary measures for the laying out, opening, and establishing the aforesaid described new street or highway in conformity to law.'

"The highway committee having failed to agree with the respective parties entitled to damages, or liable for betterments, applied to the assessment committee, who on the 10th day of January, 1871, at 10 o'clock a. m. and by adjournment on the 2!id and 21th days of said January having given legal notice to all parties of such meeting and having met and appraised damages and assessed benefits or betterments as follows:

North Side.

Damages.

Benefits.

Wm. McGowen

$8

$ 108

Paul Link

9

377

Newton Carter

8

248

Wm. H. Bindley

3

93

Wm. McGurk

3

103

Newton Carter

5

105

Michael McWeeney

5

135

John Grosan

6

146

Thos. Summer

5

105

Alfred E. Burr

17

315

James Goodwin

241

241

James G. Battorson

190

715

Edward Kenyon

67

397

Seth Kenyon

258

1,528

Bernard MiGmk

53

453

Darwin & John Adams

212

212

Jas. B. Slmltas

315

415

South Side.

Dimages.

Benefits.

Warren B. Sage & Wife

98

$ 98

Joseph S. Frenee

39

139

James Goodwin

104

104

Jonathan Goodwin

283

408

Edward Kenyon

101

101

Seth Kenyon

101

101

Samuel F. Bradley

31

231

John Harrison

30

180

John Frany

20

70

D. S. Brooks & Son

20

45

Bernard McGurk

20

20

N. W. School District

13

13

Peter Sunderland

10

10

Darwin & John Adams

236

230

James Goodwin

310

310

Total Damages and Benefits

for street lay out assessed

21st May 1867. Better-

ments were estimated and

deducted from the damages.

5,001

$7,822

tt

$7,822

"Which appraisals and assessments were duly certified by said assessment committee, and published according to law and from which no appeals were taken, and the time limited for appeals having expired the same amounts still remain, and have become final. Your committee therefore offer the following resolution and recommend its passage:

"'Resolved: That all the proceedings in the laying out of Albany avenue and of the building lines thereon as described in the foregoing report of the highway committee be, and the same are hereby, accepted and approved, and that said street and building lines are hereby established and confirmed; and it is hereby ordered that the city treasurer be directed to offset the betterments against the damages respectively assessed as aforesaid upon his books in accordance with "An act to amend the charter of the city of Hartford," approved July Gth, 1870, and that the sums awarded as damages remaining after such offset be deposited with said treasurer, to be paid to the respective parties, and also that his honor the mayor be and is hereby authorized and requested to issue a warrant for the collection of the several amounts of betterments assessed upon the several parties, and lands and not set off as aforesaid.'

"F. S. Brown, Chairman.

"Hartford, Conn., April 1st, 1871."

Indorsements: "Final Report of the Highway Committee, on the Layout of Albany Avenue Street and Building Lines. An B. A. April 1st, 1871. Report accepted and resolution passed. l. Woodhouse, Clerk. C. C. B. April 1, 1871. Concur: P. F. Butler, Clerk. Hartford, April 4, 1871. Approved: Chas. R. Chapman, Mayor."

An ordinance of the city effective September 25, 1869, and thereafter, provided as follows:

"Section 1. Whenever any vote or resolution shall be offered in either board of the court of common council proposing to lay out, construct or establish any new highway, street * * * or to discontinue or to alter the location or width of any existing highway, street, * * * or to exchange or sell one highway for another; or to establish a building line or lines, * * * such vote or resolution shall not be passed by either board of said court, of common council until said court has caused said proposed vote or resolution and a certificate that the same is pending in said court, attested by the clerks of each of said boards, to be published, at least twice in two daily newspapers published in the city of Hartford with a notice appended to such published vote or resolution to all persons to file a written statement of their objections, if they have any, with the city clerk within ten days inclusive from the day of the first publication of said notice. * * *

"Sec. 2. Every such proposed vote or resolution shall briefly and intelligently state the general character and description of the proposed improvement but need not contain definite measurements, courses or termini. It may embrace one or more of the several kinds of local improvements specified in the first section of this ordinance, and in case of a new street, or alteration of an established street, shall designate the building lines of said street."

A similar ordinance so far as respects this case had been in effect since 1860, except that it was not provided therein that proposed votes relating to new streets or alterations of established ones should designate the building lines.

The plaintiff also introduced a resolution of the court of common council passed and approved April 6, 1867, copies of which were published in two Hartford newspapers while the resolution was pending in the court of common council. This resolution is identical with the one which is recited in the report of the highway committee contained in Exhibit D. The newspaper copies referred to were also introduced in evidence and are Exhibits B and C mentioned in the finding. These copies as printed were duly certified by the clerks of the board of aldermen and common council as pending in the court of common council, and there was printed with them the following order passed by the court of common council relative thereto: "Ordered: That the foregoing resolutions be published in two daily newspapers issued in the city of Hartford, attested by the clerk of each branch, to be pending in this court, together with a notice appended to such resolutions, as published, to all persons to file a written statement of their objections, if any they have, with the city clerk, within ten days from the day of the first publication of said notice. Attest: Levi Woodhouse, City Clerk." This was the only evidence offered by the plaintiff to establish the legality of the assessment. The defendant offered no evidence except a copy of Exhibit D taken from the records of the city clerk where it was recorded pursuant to an ordinance and which showed that the vote was approved April 2, 1871. The other facts sufficiently appear in the opinion. The defendants claimed that the plaintiff had failed to show that the requirements of the ordinance with respect to notice had been complied with, or that the assessment upon which the lien in suit was founded was valid, and they claimed that the assessments and liens were invalid.

William Bro Smith and Robert C. Dickenson, for appellants.

William W. Hyde and Lawrence A. Howard, for appellee.

THAYER, J. (after stating the facts as above). The defendants own land on Albany avenue in the city of Hartford. Their several lots formerly constituted one tract which was owned by James G. Batterson, through whom directly or by mesne conveyances they all derive title. In 1871, when the land was owned by Batterson, the plaintiff caused a certificate of lien...