City of Hartford v. Maslen

• Decision Date: 15 April 1904
• Citation: 76 Conn. 599,57 A. 740
• Court: Connecticut Supreme Court
• Parties: CITY OF HARTFORD v. MASLEN et al.

57 A. 740

76 Conn. 599

CITY OF HARTFORD

v. MASLEN et al.

Supreme Court of Errors of Connecticut.

April 15, 1904.

Appeal from Superior Court, Hartford County; Alberto T. Roraback, Judge.

Action by the city of Hartford against Stephen Maslen and others to restrain defendants from erecting a monument to the First Connecticut Heavy Artillery on land claimed by the plaintiff to be a part of the public park, but used as a part of the state capitol grounds. From a judgment overruling plaintiff's demurrer to the second defense, and from a final judgment in favor of defendants, plaintiff appeals. Affirmed.

This action involves the right of the state, under a resolution of the General Assembly, and without authority from the plaintiff, to cause a certain memorial, commemorative of the services rendered by the First Connectinut Heavy Artillery in the Civil War, consisting of a famous mortar, suitably mounted, and supported by a stone foundation, to be erected upon land a short distance northeast of the state capitol, at Hartford. The land upon which it is proposed to erect the memorial is described in paragraph 1 of the complaint as bounded "northerly on a roadway leading westerly from Trinity street through Bushnell Park, and known as the southerly roadway through Bushnell Park, about 200 feet; easterly on Trinity street about 75 feet; southerly on land conveyed to the plaintiff by the trustees of Trinity College, and devoted by the plaintiff to the purposes of a site for the state capitol, about 200 feet; and westerly on a walk running practically parallel with Trinity street, said walk leading from the said state capitol to a point on Trinity street near the memorial arch, about 75 feet; said plot of land being on the southeasterly portion of what is known as West Bushnell Park." The complaint alleges that the plaintiff is the owner and is in the possession of said tract of land, and that the defendants threaten to erect said memorial upon said land. The defendant Maslen has contracted to erect said memorial, with the other six defendants, who are a committee of a private association composed of persons who were formerly members of said First Connecticut Heavy Artillery. The defendants, by their answer, denied the plaintiff's allegations of ownership and possession of said described tract, and in their second defense alleged (1) that "by special act and resolution of the General Assembly of the state of Connecticut, passed and approved July 9, 1895, the Regimental Association of the First Connecticut Heavy Artillery was authorized and empowered to erect a monument or memorial of its services, at such point upon the capitol grounds at Hartford as should be designated by the State Comptroller"; (2) that "pursuant to and acting under authority of said resolution, and at the request of the committee of said Regimental Association, the Comptroller did designate a site for such monument or memorial upon the capitol grounds, which site so designated forms a portion of the property within the control and under the exclusive authority and supervision of the state, and is within the limits of the plot of ground described in paragraph 1 of the plaintiff's complaint; * * *" and (4) that "by authority of said resolution, and acting under the direction of the Comptroller, the defendants (being the committee of said Regimental Association and the contractor, Maslen, employed by them) entered upon the work of erecting upon the site designated said memorial, and claim the right to erect the same upon the site so designated by virtue of the special act of the General Assembly above described." The plaintiff demurred to this second defense upon the grounds that it did not "allege the conveyances, leases, contracts, or other instruments or means whereby the state acquired exclusive authority and supervision over" said tract; that the allegations that the state had such control, and exclusive authority and supervision, and that the land in question was a part of the capitol grounds, were conclusions of law; and that it did not appear from said defense that the state had any authority to designate a site for the erection of such memorial upon the capitol grounds or upon the plaintiff's land.

The court having overruled the demurrer, the plaintiff replied, denying the allegations of paragraphs 2 and 4 of the second defense, and upon the issues thus framed the court found the following facts:

In 1858 the plaintiff acquired title in fee simple to the tract described in the complaint, which, with other lands, was devoted to the purposes of a park called "Bushnell Park." The southerly line of said park and of the tract in question was the southerly line of Elm street produced westerly, said southerly line being between 12 and 13 feet north of the north steps of the capitol building as it now stands. On July 17, 1871, the General Assembly, having on that day passed resolutions authorizing the city of Hartford to issue its bonds to the amount of $1,000,000, for the purpose of defraying the expense of constructing a statehouse in the city of Hartford, and of purchasing the land upon which it should be erected, and authorizing said city to hold a special city meeting for the purpose of voting by ballot upon the question of approving the issue of such bonds, passed a resolution, portions of which read as follows: "Resolved by this Assembly: That Marshall Jewell of Hartford, William D. Bishop of Bridgeport, William A. Buckingham of Norwich, William H. Barnum of Salisbury and William D. Shipman of Hartford, be and they hereby are constituted and appointed a board of commissioners for the state, with ample powers to contract for, and fully complete, construct, and erect in the city of Hartford, a building suitable for the use of the state as a state house." "And said commissioners shall confer with the proper authorities of the city of Hartford, and with them determine upon a site for said building, which shall be provided by said city free of expense to the state, and subject to the use of the state, so long as Hartford shall be recognized either as one of the capitols of the state or as the capitol thereof." July 20, 1871, an act was passed as an amendment to the charter of the city of Hartford providing that "whenever the court of common council of the 'city of Hartford shall have agreed with the board of commissioners for the erection of a state house upon a suitable site for the location of said state house, the said court shall have the right to enter upon, use and occupy sufficient land for said purpose, and for the laying out of suitable grounds around said buildings, provided however that before entering upon or using said land for the purpose aforesaid the said court shall agree with the owner or owners thereof * * * as to the amount of damage to be done thereby"; and further providing, in case of failure to so agree with such owners, for the taking of laud for such purpose by the court of common council by condemnation proceedings. On August 25, 1871, said board of commissioners for the state were duly notified of the action taken at a special city meeting on the 16th of August, 1871, approving of the issue of bonds by the city of Hartford as authorized by said resolution of the General Assembly of July 17, 1871. On August 28, 1871, the court of common council of the city of Hartford passed the following resolutions: "Resolved, that the high ground upon the West Park in the city of Hartford, or so much thereof as may be necessary, be and hereby is offered to the state as a site for the erection of a suitable building in said city for the purposes of the state as a state house and that said site be and hereby is offered free of expense to the state, and subject to the use of the state, so long as Hartford shall be recognized as one of the capitals of the state or as the capitol thereof." "Resolved, that the mayor, Aldermen Summer and Lawrence, and Councilmen Buckley, Allen, Eustace and Soper be, and hereby are appointed a committee on behalf of this court to confer with the 'board of commissioners concerning the state house' appointed by the General Assembly at the last session thereof and to offer for the site of a state house, the site proposed in the foregoing resolution." On September 8, 1871, at a meeting of said board of state commissioners, a formal tender of the high ground of West Park, made by the city through its authorized representatives, was formally accepted on behalf of the state by said commissioners, in accordance with the following vote passed at said meeting: "Voted, that the site on the West Park in the city of Hartford this day tendered by the city through the committee of the court of common council, for the purpose set forth in the resolution this day presented to this board by said committee through their chairman, his honor the mayor of said city, be and the same is hereby accepted by this board." "The site thus tendered by the city and accepted by the state includes the land north of the capitol building now in controversy. The resolution tendering the above site was never rescinded." On March 15, 1872, the court of common council submitted to popular vote, for approval, its resolution of that date for the purchase of the grounds known as the "Trinity College Site," bounded north by the park, south by College street, east by Trinity street, and west by Park river, containing 13 acres, more or less; the same to be devoted to the purposes of a public park, excepting such portion as the court of common council should thereafter offer to the capitol commissioners for a site for a statehouse. Said resolution having been approved by the voters of the city at a special city meeting, the city received a deed of said Trinity College lands; and in April, 1872, the court of common council appointed a committee, consisting of the mayor, two aldermen, and two councilmen, "to formally tender on behalf of the court of...