Fenwick Hall Co. v. Town of Old Saybrook

• Decision Date: 23 March 1897
• Citation: 36 A. 1068,69 Coun. 32
• Parties: FENWICK HALL CO. v. TOWN OF OLD SAYBROOK.
• Court: Connecticut Supreme Court

36 A. 1068

69 Coun. 32

FENWICK HALL CO.

v. TOWN OF OLD SAYBROOK.

Supreme Court of Errors of Connecticut.

March 23, 1897.

Appeal from superior court, Middlesex county; Hall, Judge.

Action by the Fenwick Hall Company against the town of Old Saybrook to enjoin collection of highway assessment. Judgment for plaintiff. Defendant appeals. Reversed.

Lewis E. Stanton, for appellant.

Morris W. Seymour and Howard H. Knapp, for appellee.

HAMERSLEY, J. The plaintiff is owner of the hotel known as "Fenwick Hall," in the town of Old Saybrook, and of the piece of land on which the same is built. This property is separated from another portion of the town by an estuary of Long Island Sound about three-quarters of a mile in width. Many years ago the plaintiff or its predecessors in title, for the purpose of rendering said hotel convenient of access, expended a large sum in constructing a bridge across this estuary, and has maintained the same at its own expense. William L. Matson and others owning land in the neighborhood of the hotel applied to the selectmen of the town to lay out a highway across the estuary, and, upon their refusal, brought an application to the superior court claiming a judgment for a layout, and the assessment of damages and benefits incident thereto. In June, 1894, the superior court rendered judgment against the town, ordering a highway 70 feet in width to be laid out across the estuary and over the land adjoining the same (the said bridge being included within the limits of the highway), and ordering the highway so laid out to be constructed and opened for public travel on or before June 3, 1895; and also rendered judgment in favor of the town to recover of the present plaintiff the sum of $5,872.10, being the amount of special benefits duly found and assessed against it; and adjudged that the present plaintiff pay said sum to said town on or before August 1, 1894, and that said assessment be collected in the same manner as town taxes may by law be collected. The plaintiff did not pay said assessment, and the town procured a warrant to be issued for the collection of the same in the manner provided by law for the collection of town taxes. On October 10, 1894, the collector of the town levied this warrant on the real estate of the plaintiff, and advertised the same for sale at public auction according to law. The sale was adjourned from time to time and on May 4, 1805, the plaintiff brought this complaint, asking a permanent injunction restraining the town from completing the levy of the warrant. The superior court rendered judgment for such permanent injunction. The layout of the highway and assessment of benefits was a judicial proceeding, to which the plaintiff was duly made a party; and, as the finding shows, it did appear, and was heard. The plaintiff, therefore, is bound to pay the amount assessed against it by force of a final judgment of the superior court, in a cause to which it was a party. The order on the plaintiff to pay the assessment immediately became a debt. It is not distinguishable from any other judgment for debt. Welles v. Cowles, 4 Conn. 182, 188. The warrant in the hands of the collector is in the nature of an execution issued on a final judgment. The plaintiff asks the superior court as a court of equity to restrain the defendant from completing the service of this execution issued upon the final judgment of the same court rendered nearly one year before this action was commenced. The complaint alleges three grounds on which the injunction is asked,—the judgment against the plaintiff is void; the defendant has failed to comply with certain statutory requirements which must precede the collection of the amount assessed; certain events have occurred since the rendition of the judgment, which render its enforcement unjust, and authorize a court of equity to interfere. The plaintiff claims that the judgment is void because it appears from the record of the proceeding that there has been no finding by a committee that the highway is of common convenience and necessity. The committee appointed by the court, in the report of their doings, after stating their layout of the highway, say: "We find and report that the portion of the claimed highway laid out by us, as above set forth, is of common convenience and necessity, and said application ought to be granted, assuming that at least $10,000 of assessments of special benefits by reason of said layout can be legally sustained; and we also find as a fact in the case that whether the structure to be adopted be a new pile bridge, or repairs to the present pile bridge, or a permanent earthwork, or some other structure, the cost to the town of the proposed layout (including a fair estimate of the future cost which is certain to be incurred over and above ordinary highway repairs) will be equivalent to a present burden of not less than $22,000, and that such an expense is beyond the financial ability of the town to sustain, and an unreasonable burden to be placed upon the town; and we therefore find and report that, if an assessment to the amount at least of $10,000, as aforesaid, by reason of said layout, cannot be legally sustained in favor of the town, then, and in such case, the said layout of said highway is not of common convenience and necessity, and said application for a layout ought to be rejected." The plaintiff says that this is only a conditional finding, and that without an absolute finding by the committee that the highway claimed is of common convenience and necessity, the court has no jurisdiction to pass any judgment whatever, and therefore the judgment is not only voidable, but void, and may be collaterally attacked by the parties to the judgment.

The superior court is a court of general jurisdiction. The duty of constructing and maintaining necessary highways is imposed upon towns. In the absence of a statute, the refusal of a town to act in the performance of that duty presents a question within the jurisdiction of the court. The taking of a right of way without compensation also presents a question within the court's jurisdiction. When the statute provides for an application to the superior court upon the refusal of a town to lay out a necessary highway, it prescribes the process for bringing before the court subject-matters within its general jurisdiction, and regulates the manner of exercising that jurisdiction. The fact that incident to the final judgment to be rendered are matters that by themselves might be without its jurisdiction, and that the exercise of some special and limited powers involved should follow the statutory provisions, does not alter the material fact that the main subject-matters of this proceeding are within the general jurisdiction of the superior court. Its judgment in such a case is clearly distinguishable from that of an ordinary special tribunal. Avery v. Groton, 36 Conn. 304, 308. The application is in the nature of an appellate proceeding, and the only strictly jurisdictional fact—i. e. a fact whose absence from the record renders the whole proceeding coram non judice—is the fact that the town, through its selectmen, has refused to lay out the highway; and on this fact the finding of the superior court is conclusive. Huntington v. Birch, 12 Conn. 142; Southington v. Clark, 13 Conn. 373; Ives v. Town of East Haven, 48 Conn. 288. Formerly the statute provided that the court should pass upon the question of common convenience and necessity "by committee or otherwise," and it was held the question was properly decided by the court without appointing a committee (Windsor v. Field, 1 Conn. 284); and that the acceptance of the report of a committee was a finding of common convenience and necessity (Lockwood v. Gregory, 4 Day, 416). Since the statute has required the question to be sent to a committee, the conclusions of the committee cannot be altered by the court, yet their report being the action of an arm of the court, and a basis of its judgment, the court has a supervisory control of the committee, and may reject or accept its report, and in doing either it is in the exercise of its jurisdiction. Town of Winchester v. Hinsdale, 12 Conn. 87, 94, 100, 13 Conn. 132; Clark v. Saybrook, 21 Conn. 313, 319; Pierce v. Southbury, 29 Conn. 490; Goodwin v. Wethersfield, 43 Conn 437; Hoadley v. Waterbury, 34 Conn. 38. In the present case the town remonstrated against the acceptance of the report on the ground that, properly construed, it did not find the highway to be of common convenience and necessity. The court overruled the remonstrance, held the committee had so found, accepted the report, and rendered judgment accordingly. In this the court acted, whether correctly or not, in the exercise of its jurisdiction. Neither the town nor the present plaintiff appealed. As between them, the judgment is a valid final judgment, as valid as if it had been affirmed by this court, and it cannot be attacked in this action. For the same reason, the error of the superior court, if it did err, in the...