Elliott v. Council of Newark
| Decision Date | 18 July 1896 |
| Citation | 68 A. 400,8 Del.Ch. 64 |
| Court | Court of Chancery of Delaware |
| Parties | JOHN L. ELLIOTT, FRANCES O. ELLIOTT AND BENJAMIN S. CAULK, v. THE COUNCIL OF NEWARK |
INJUNCTION BILL.--The complainants were owners of land in the town of Newark, in New Castle County, who sought to restrain the Council of Newark from taking portions of their land under the power of eminent domain for the purpose of widening a street. The Council, under the town charter, assessed the damages and from that assessment the complainants appealed by filing an application in writing to Chief Justice Lore for the appointment of freeholders to assess the damages. The application to the Chief Justice was made upon the theory that he had jurisdiction of the matter under the statute by reason of the absence from the State of the resident judge of the county. The commissioners appointed by the Chief Justice made awards and afterwards, the complainants being dissatisfied therewith, upon notice to the president of the Council, made an application to the Associate Judge resident in New Castle County for the appointment of commissioners they having then adopted the theory that in the resident Judge alone was vested the power to act in the premises.
The application to the resident Judge was not acted upon and the town Council partially entered upon the premises in question and were notified by the complainants, through their counsel that they were trespassing. This notice having proved ineffectual, the bill was filed and a preliminary injunction applied for.
The prayers of the bill were for answer, injunction, further relief and subpoena.
An answer was filed by the respondents, the Council of Newark in the month of September, but subsequently an agreement of counsel was entered into and filed on January 15, 1896, setting forth an agreed statement of facts to stand in the place of bill, answer and proofs.
The statement set forth the following facts:
1. The ownership by the complainants of the land in question.
2. That the respondent had determined to widen Main street in the town of Newark on, over and through the said lands, and that on May 24, 1895, did serve upon the complainants notice of their intention to take the land, with a description of what was to be taken, and a statement that "after duly considering the matter, the Council has awarded the sum of $ 310 for damages sustained." The complainants being dissatisfied, having on June 1, 1895, served written notice upon the president of the Council to that effect, did, on June 12, 1895, make application in writing to the Honorable Charles B. Lore, Chief Justice, for the appointment of five freeholders to go upon the lands and assess the damages.
3. That the Chief Justice, upon said application, appointed the freeholders.
4. That on July 11, 1895, the freeholders went upon the land and assessed the damages to the complainants, John L. Elliott and Frances Elliott, in right of the latter, at the sum of $ 206.66, and to the respondent, Benjamin S. Caulk, the sum of $ 103.34, and the commissioners did so certify their return to the Chief Justice.
After the return of the commission the respondent exercised the option to pay the damages and instructed the treasurer of the town to do so, and also decided to proceed with the improvements and work of widening the street, and on July 17, 1895, the treasurer of the town duly tendered the sums of money so assessed.
5. The Council entered upon and occupied a part of the lands "without the consent and against the will of the complainants," and "intends to and will, unless restrained therefrom by the Chancellor, further enter upon and occupy" the said lands.
6. That at its regular stated meeting on August 5, 1891, a petition signed by thirteen freeholders of the town was presented to the respondent, requesting it to widen the Main street of the town, and at said meeting an alleged ordinance was introduced in and read twice by the Council.
7. At a special meeting of said Council, pursuant to a call recited in the minutes thereof, on August 12, 1891, the alleged ordinance so proposed on August 5, was adopted.
8. The said alleged ordinance adopted on August 12, 1891, was not recorded in a book provided by Council for that purpose and called "Ordinances," until August 1, 1895, and it was so recorded at that time.
9. The complainants within ten days after receiving notice of the intention to widen the street and the amount of damages allowed thereon, served written notice on the president of the Council to that effect, and within ten days after the expiration of the ten days allowed for appealings, made written application to the Honorable Ignatius C. Grubb, Associate Resident Judge of New Castle County, for the appointment of commissioners to assess damages, under Chap. 175, Vol. 18, Laws of Delaware, and the amendments thereto, being Chap. 174, Vol. 19, which written application has never been presented to him in person, but was deposited in the office of the Prothonotary in New Castle County and by him marked filed. It was admitted that Judge Grubb was absent from the County and State from May 24, 1895, until after the filing of the bill, but that he is now, and has been for upwards of three months, within the County and State, and in good health.
10. It was admitted for the purpose of argument, that part of the premises taken for widening Main street ran along the whole front of the said two lots, a distance of 167 feet, that there is erected on lot No. 1 a handsome and commodious mansion house where the complainants now reside, and have all their lives resided, and which has for generations been the home of complainant's ancestors; that on the land in front of said mansion and on part of the land sought to be taken are ornamental shrubbery and shade trees of many years growth, the loss of which, and the unlawful appropriation of them, would destroy the privacy, comfort and quietude of said mansion as a place of residence, which loss it would be impracticable to adequately determine, and that said appropriation would result in irreparable damages to the complainants.
11. On July 19, 1895, the complainants, through their attorneys, served written notice upon the respondent that they were trespassing upon the lands of the complainants and notified them to abstain from entering on or occupying the same, or any portion thereof, for the purpose of widening Main street, or for any other purpose.
12. Notwithstanding the said notice, the respondent continued in its occupation of the portion of the land, and threatened and intended to widen the Main street under the proceedings aforesaid.
13. The questions submitted by the case stated, were as follows:
(1) Was the alleged petition of freeholders presented to The Council of Newark on August 5th, 1891, as set forth in the agreement of facts, sufficient under the various Acts of Assembly incorporating the town of Newark?
(2) Were all the formalities and prerequisites for the adoption of an ordinance by The Council of Newark under which the said Council is attempting to appropriate the said land complied with, and was said Ordinance properly adopted?
(3) Did the failure of the Secretary of The Council of Newark to record the ordinance, under which the defendant is attempting to appropriate said land, in a book called "Ordinances" until August 1st, 1895, entitle the Complainants to maintain their Bill for an Injunction?
(4) Was the appointment, of the commission to assess the damages to the Complainants, by the Honorable Charles B. Lore, Chief Justice, according to law?
(5) Are the Complainants precluded from seeking a remedy by injunction after having applied to the Honorable Charles B. Lore, Chief Justice, for the appointment of a commission as aforesaid?
14. It was agreed that if after argument the Chancellor should be of opinion that the action of the Council of Newark in entering upon and occupying the lands described was lawful and that the complainants had not a right to maintain their bill, then a decree should be made dismissing the bill with costs. But if the Chancellor should be of opinion that the entering upon and occupation of the premises by the respondent was unlawful, and that the complainants had a right to maintain their bill, then a decree should be made perpetually restraining the Council of Newark from further entering upon and occupying the said premises, and that the respondents should pay the costs; the decree in each case to be as if heard on bill and answer.
The statute, under color of which the proceedings of the respondent were taken, was Sec. 38 of the town charter of the town of Newark, being 18 Del. Laws, Ch. 175, 19 Del. Laws, Ch. 744.
Under the said amended section, it was provided that when the Council should determine to lay out any new street etc., or to widen any street, etc., it should be their duty to notify in writing the owner of the lands through or over which the same was to go, and state the amount of damages or compensation allowed to the owner. If the owner should be dissatisfied with the amount, he had a right to appeal within ten days, by serving written notice thereof on the president of the Council, and within ten days after the expiration of the ten days allowed for appealings, the owner should make written application to the Associate Judge resident in New Castle County for the appointment of commissioners to assess the damages. Provisions were made for the assessment of damages, and return, and for filling vacancies.
The amount of damages must be paid or tendered within a month, if the owner be a resident, but the Council had the option to pay the damages within that time and to proceed with the improvement, or, upon...
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