Danforth v. City of Bangor

• Decision Date: 08 May 1893
• Citation: 85 Me. 423,27 A. 268
• Parties: DANFORTH v. CITY OF BANGOR.
• Court: Maine Supreme Court

27 A. 268

85 Me. 423

DANFORTH

v. CITY OF BANGOR.

Supreme Judicial Court of Maine.

May 8, 1893.

(Official.)

Report from supreme Judicial court, Penobscot county.

Proceeding by the city of Bangor to extend Date and Somerset streets in said city. Mercy A. H. Dauforth, an abutting owner, appeals from the award of damages made her. Heard on report Appeal dismissed.

A. W. Paine, for plaintiff.

H. L. Mitchell, City Sol., for defendant.

LIBBEY, J. An appeal from the action of the city council of Bangor in awarding damage to the plaintiff for land which she claims was owned by her, taken for the extension of Date and Somerset streets on the 1st day of October, 1889. They appraised the damage to the plaintiff for the land taken at the nominal sum of one dollar, on the ground, as the city claims, that the land taken had been dedicated to the public use by Philip Coombs, who was the owner, in 1835. And the contention between the parties is whether there was such dedication to the public use as authorized the city to open the streets as it did in 1889, without the payment of the actual damage for the land taken. It is admitted by the counsel for the plaintiff that, if there was such dedication by the owner in 1835 which would bind him and his grantees, the plaintiff's claim for damages is not maintainable.

On the 26th of March, 1835, Philip Coombs and three others, who had acquired some interest in the premises, conveyed a portion of the lands which they owned in the immediate vicinity to the city of Bangor, by the following description: "in consideration of one dollar to us paid, and also in consideration and upon condition that the parcel or tract of land herein intended to be conveyed to the corporation of the city of Bangor shall be Inclosed as a common, and be kept by said city, unintersected by roads, for the proper use of the public forever, have granted, bargained, sold, released, and conveyed * * * unto the said corporation of the city of Bangor, and their successors, the piece of land in the several portions held by us, respectively, called the 'City Common,' according to a plan of the premises drawn by Charles G. Bryant, marked 'A,' to be recorded, and which is embraced within the following boundaries, viz.: Cumberland street on the north, Somerset street on the south, Date street on the east, and Lime street on the west."

The validity of this conveyance for the use named was before this court in Bangor v. Warren, reported in 34 Me. 324, in which the court held that the conveyance was valid, and had been duly accepted by the city. Henry Warren, in that litigation, claimed to have acquired the title to the whole of the common and the premises surrounding it by virtue of a levy against Philip Coombs; and upon that claim a contention between the parties arose, and was determined. It is claimed that the plan by Bryant, referred to in the deed, not only embraces the land conveyed to the city, but a large portion of lands surrounding the common, in different directions, and that upon that plan streets and lanes for public use were marked, and me lands divided into lots bounded upon one side by the streets and designated by numbers.

The first question discussed arises upon the admissibility of the deposition of William Coombs, taken in perpetuam. With that deposition what is alleged to be a copy of the Bryant plan is produced. It is claimed by the counsel for the plaintiff that the deposition is not admissible, because no notice was given to Mrs. Danforth of the time and place of taking it, and the purpose for which it was to be taken. The notice was served upon Enoch C. Danforth, plaintiff's husband, and he appeared before the magistrate when the deposition was taken, and participated in taking it it is claimed on the part of the city that in equity the land was the property of the husband, and that he was the party in interest it appears in the evidence, and is not controverted, that he bought the land, and paid a part of the consideration, and had the title conveyed to his wife. But we think that is not sufficient to show that the wife was not interested in the taking of the deposition, under the statute. The presumption is, in the absence of proof to the contrary, that the husband gave to the wife the land at the time it was purchased, and she certainly has the legal right to claim damages from the city for taking it. We are of opinion that the deposition is not admissible against her, because she was not notified.

That excludes from this case the evidence offered by the city to prove the plan and its contents. But we...