Durand v. Borough of Ansonia

• Decision Date: 09 October 1888
• Citation: 17 A. 283,57 Conn. 70
• Parties: DURAND v. BOROUGH OF ANSONIA.
• Court: Connecticut Supreme Court

17 A. 283

57 Conn. 70

DURAND

v. BOROUGH OF ANSONIA.

Supreme Court of Errors of Connecticut.

Oct. 9, 1888.

Appeal from court of common pleas, New Haven county; DEMING, Judge.

C. R. Ingersoll, for appellant. E. B. Gager, for appellee.

PARDEE, J. On September 28, 1885, the plaintiff was the owner of land abutting upon South Cliff street in the defendant borough. Upon the street in front of his land he had previously constructed a concrete sidewalk, six feet in width, and had planted on the outer edge a row of trees. Outside of these was a gutter, paved and curbed. On the day above named the wardens and burgesses of the borough, in the exercise of power conferred by its charter, changed the grade, but not the course or width, of the street in front of the plaintiff's land; and on May 24, 1886, ordered "the property owners interested to curb and pave gutters, and concrete the sidewalks * * * to the established grade," —to be done before October 1, 1886. The plaintiff refused to obey the order, and in May, 1887, the borough performed the work, removing so much of the concrete walk, soil, and grass as was necessary to make the grade of the walk conform to the new grade of the street. The plaintiff thereupon brought this complaint, alleging that the defendant had unlawfully entered upon his land, torn up the sidewalk, curb, and gutter, removed the soil, and injured the trees; claiming damages. The defendant, for answer, alleged that it had done the work as it might lawfully do, because of his refusal to execute its order. To this the plaintiff demurred because there was no allegation that the borough had ever designated, fixed, or established either the width, height, or grade of the sidewalk to be laid, nor that it had designated, fixed, or established the grade thereof to be the same as that of the street. The demurrer was sustained, and the plaintiff had judgment. The defendant appealed, in effect, for the reason that the court had decided that the answer neither alleged that it had designated, fixed, and established the width, height, and grade of the sidewalk, nor that it had designated, fixed, and established the grade thereof to be the same as that of the street.

The question presented is, was the order sufficiently precise to require obedience on the part of the plaintiff? The courses, distances, width, and grade of streets within the borough are all within its power to determine. And whenever it determines the grade of a street, it determines...