Cook v. City of Ansonia

• Citation: 66 Conn. 413,34 A. 183
• Court: Supreme Court of Connecticut
• Decision Date: 22 June 1895
• Parties: COOK v. CITY OF ANSONIA.

34 A. 183

66 Conn. 413

COOK

v. CITY OF ANSONIA.

Supreme Court of Errors of Connecticut.

June 22, 1895.

Appeal from court of common pleas, New Haven county.

Action by Lewis I. Cook against the city of Ansonia for damages caused by a change of grade. From a judgment for plaintiff, defendant appeals. Affirmed.

V. Munger, for appellant.

Earlliss P. Arvine and Charles C. Ford, for appellee.

HAMERSLEY, J. No question is made as to the liability of the city of Ansonia, if the borough, before its merger in the city, was liable, and for convenience we will treat the borough of Ansonia as the defendant. This is an action to recover from the defendant damages for changing the grade of a highway, without causing the special damage to the property of the plaintiff, an owner of adjoining land, to be appraised. Two principal questions of law were involved in the trial,— one relating to facts by which the authority of the borough for acts done in its behalf may properly be established, and the other to facts that may properly be considered in determining the damage alleged. Those questions were raised by demurrer, by objections to evidence, and by requests to charge. All substantial questions presented by the 50 errors assigned in the appeal may be classed under four heads, and will be disposed of by the conclusions we reach in considering the demurrer to the complaint, the demurrer to the defendant's second defense, the facts which the court below held to be proper evidence to prove authority from the borough for acts done in its behalf, and the facts held proper to be considered in determining the damage to the plaintiff's property.

L The demurrer to the complaint was properly overruled. The complaint alleges damage to the plaintiff, and sets up specific facts sufficient to support the claim of special damage to his property by reason of the change of grade. It is not necessary to allege, as a conclusion from these facts, that the plaintiff sustained "special damage." Dann v. Woodruff, 51 Conn. 203. The complaint alleges that the warden and burgesses, in pursuance of the powers given them by the borough charter, voted to change the grade in Tremont street, and did cause the grade to be changed. This sufficiently alleges that the change in grade made was the change voted to be made. The charter, which is a public act, authorizes the warden and burgesses to work the highway to the grade as established by them. The allegation that they did so work the highway is sufficient, without detailing the evidence of that fact. A denial of the allegation compels the plaintiff to produce evidence of the fact, including the votes and other matters specified in the demurrer, so far as the same may be necessary to prove the fact alleged.

2. The demurrer to the defendant's second defense was properly sustained. The defense alleges that the warden and burgesses submitted to the annual meeting of the borough an estimate of the expenditure necessary for maintaining the borough during the succeeding year, being the year in which the change of grade was made, including an estimate of $1,500 for the care of the streets; that no action was taken by said annual meeting in reference to the estimate so submitted; that no appropriation of money for the care, etc., of streets, or for work of any kind done upon the streets, or for the payment of damages arising from any change of grade, was made by said meeting; that no such appropriation was made at any subsequent meeting held prior to the change of grade in question. The charter (Sp. Acts 1887, p. 592) vests in the warden and burgesses the "sole and exclusive authority and control over all streets and highways," and the sole and exclusive power to lay out highways, and to order and make all public improvements in highways, Including the power to establish and change the grades. This power is exclusive in the warden and burgesses, and cannot be exercised by a borough meeting. The only limitations on the power are found in section 23 of the charter, which provides, among other things, that, prior to each annual meeting of the borough, the warden and burgesses shall prepare a detailed and classified estimate of the expenditures of said borough for the ensuing year; that said estimate shall be submitted to the annual meeting, "and shall be acted upon by said meeting"; that said meeting may approve the estimates as submitted, or alter the same, and authorize the warden and burgesses to make appropriations to meet said estimates as finally fixed by said meeting, the total amount of such appropriations for any one year not to exceed the estimated income of the borough, and neither the warden and burgesses nor any borough officer to make expenditures except for the purposes specified in the estimates so fixed; that the warden and burgesses shall not incur any liability or expense, by contract or otherwise, for which the borough shall be responsible, in excess of the estimates so fixed by said meeting. Does the fact that the borough, at its annual meeting, disobeyed the law, and neglected to take any action on the estimates submitted, divest the warden and burgesses of their powers and duties as fixed by law, so that, in the exercise of such powers and duties, their acts are the acts of individuals, or of mere usurpers, and not the acts of the borough? The charter does not, in terms, put such a limit on their powers. It vests in them the main portion of the power granted to the borough, the whole legislative power, and substantially the whole executive power. The borough has no power in relation to streets and highways except as it acts through the warden and burgesses, in whom the sole and exclusive power is specifically vested. Section 23 relates to the expenditure of money, and forbids the warden and burgesses to incur any liability "for which said borough shall be responsible in excess of the estimates so fixed by said meeting." The money raised by taxation for the support of the borough is subject to the control of the warden and burgesses, and is disbursed upon their order. In this state, the policy of requiring appropriations, more or less specific, for all expenditures of money by municipal governments, is of comparatively recent growth. The body in which the municipal authority is vested may incur such expenses as are necessary to the execution of the powers committed to it, unless restrained by special legislation. Such legislation has generally been regarded as intended to protect taxpayers against extravagant and unnecessary expenditures, and its effect as incidentally affecting the power of the governing body only so far as may be necessary to accomplish that object. Park Ecclesiastical Soc v. City of Hartford, 47 Conn. 89; Whitney v. City of New Haven, 58 Conn. 450, 20 Atl. 666. We do not think that, in this case, the mere fact that the borough meeting neglected to take any action on the estimates submitted to it, rendered the action of the warden and burgesses in establishing and working the grade, as charged in the complaint, the act only of the individuals concerned, and not the act of the borough. If other facts, in connection with the failure of the borough meeting to act, might produce such a result, they are not alleged. It is not alleged that any borough money was expended in grading the street, or that any liability for which the borough shall be responsible was incurred. Section 23 requires the annual meeting to lay a tax to raise a sum sufficient to meet the estimated expenses. It is not alleged that such tax was not laid, and the presumption is that it was laid, and, if laid, it must have been laid to meet the estimated expenses submitted to the meeting. So far as appears in this defense, the warden and burgesses may have been acting, in establishing and working the grade, within the scope of the duties imposed upon them by law; and the borough is by law responsible for damage done to the plaintiff's property while they were so acting. Is such damage an "expenditure," or a legal "liability incurred by contract or otherwise, for which said borough shall be responsible," within the meaning and effect of section 23? We think not. Suppose that a specific estimate of $500 had been submitted to and approved by the annual meeting; that such estimate was based on the actual cost of grading, and on the belief that the grading would cause no damage to any adjoining landowner; that the grading was completed, and the plaintiff in fact damaged. Can the borough escape payment on the ground that such damage is a liability incurred in excess of the estimate? Is the mistake of the warden and burgesses, or of the borough meeting, as to the injury their acts may inflict on the person or property of others, a defense against an action for injuries actually inflicted? Clearly, this is not true. The language of the charter does not authorize the borough to defeat all liability for its torts by neglecting to provide for their payment. Section 23 should receive a reasonable construction for effectually carrying out its evident purpose of protecting taxpayers of the borough from lavish expenditures; but a construction which exempts the borough from all liability for its torts, that are not foreseen, and included in an estimate for annual expenses, is not reasonable. Bloomington v. Perdue, 99 Ill. 329; Rice v. Des Moines, 40 Iowa, 638; McCracken v. San Francisco, 16 Cal. 591. The second defense is insufficient, because its allegations are not necessarily inconsistent with the allegations of the complaint that the borough, acting through its warden and burgesses, changed the grade of Tremont street, and by reason of that change damaged the property of the plaintiff; and, that being so, the infliction of such damage, in connection with the refusal of the borough to make compensation, is a tort for which the borough is liable (Weed v. Greenwich, 45 Conn. 170), notwithstanding its failure to include...