Hayford v. Municipal, Officers of City of Bangor

• Citation: 103 Me. 434,69 A. 688
• Parties: HAYFORD v. MUNICIPAL, OFFICERS OF CITY OF BANGOR.
• Decision Date: 17 February 1908
• Court: Supreme Judicial Court of Maine (US)

69 A. 688

103 Me. 434

HAYFORD

v. MUNICIPAL, OFFICERS OF CITY OF BANGOR.

Supreme Judicial Court of Maine.

Feb. 17, 1908.

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Laura Hayford, trustee, against the municipal officers of the city of Bangor. Exceptions by defendant sustained, and petition dismissed.

See 102 Me. 340, 66 Atl. 731, 11 L. R. A. (N. S.) 940.

Petition in the nature of an appeal for an increase of damages awarded to the plaintiff by the municipal officers of the city of Bangor as compensation for land taken by said city under Rev. St. 1903, c. 4, §§ 89, 90, 91, for a public library lot. The petition was entered at the October term, 1906, of the Supreme Judicial Court, Penobscot county, and was continued to and past the January term, 190", to the April term, 1907. March 29, 1907, the petitioner died. At said April term, 1907, Anna C. Pierce, administratrix with the will annexed of the estate of the aforesaid petitioner, Laura Hayford, and also devisee in remainder upon the death of the aforesaid trustee, Laura Hayford, under the will of William B. Hayford, deceased, "offered to come in and prosecute the case in whichever capacity entitled, and the city of Bangor filed a motion to dismiss the petition." After hearing this motion to dismiss was pro forma overruled by the presiding justice, and the defendant city excepted.

Rev. St. 1903, c. 89, § 8, relating to the survival of actions, reads as follows: "Sec. 8. In addition to those surviving by the common law, the following actions survive; replevin, trover, assault and battery, trespass, trespass on the case, and petitions for and actions or review; and these actions may be commenced by or against an executor or administrator, or when the deceased was a party to them, may be prosecuted or defended by them."

Memorandum. In a former case growing out of the taking of the aforesaid land for a public library lot the plaintiff, Laura Hayford, filed a petition for a writ of certiorari. See Hayford v. Bangor, 102 Me. 340, 66 Atl. 731, 11 L. R. A. (N. S.) 940.

Argued before EMERY, C. J., and WHITE-HOUSE, SAVAGE, SPEAR, and KING, JJ.

E. C. Ryder and Hugo Clark, for plaintiff. Donald F. Snow, Charles A. Bailey, Taber D. Bailey, and Louis C. Stearns, for defendant.

EMERY, C. J. By statutory proceedings, the regularity and validity of which are not now questioned, the city of Bangor took a parcel of land in the city for public use as a site for a public library building. The statutory provision for determining the "just compensation" to be paid by the city for the land so taken was that the municipal officers of the city, after giving the specified public notice of the time and place for hearing, should "hear all parties interested, * * * and estimate the damages to be paid to each owner so far as known, and make a return of their doings," etc. A further provision was that "any person aggrieved by the estimate of damages" by the municipal officers might petition the Supreme Judicial Court to estimate the damages, such petition to be presented at the next term of the court in Penobscot county, after 60 days from the taking of the land. Rev. St. 1903, c. 4, §§ 89, 90. 01, and chapter 23, § 20.

The taking was April 29. 1906. The municipal officers, after due public notice and other due proceedings, estimated the damages for such taking at $45,000, and awarded the whole sum "to Laura Hayford, trustee of estate of Wm. B. Hayford, no other being known." Wm. B. Hayford, deceased, the former owner of the land, had by will devised his estate to Laura Hayford for life, but in trust for herself and Anna C. Pierce, and after her death to said Anna C. Pierce in fee.

At the next October term of the Supreme Judicial Court for Penobscot county Laura Hayford as such trustee and in that capacity filed a petition for an estimate of her damages by the court "as provided by law." This petition was continued to and past the January term, 1907, to the April term, 1907. In the vacation between the January and the April terms, viz., on March 29th, Laura Hayford, the petitioner, died. At the term next following the death of the petitioner, viz., the April term. 1907, Anna C. Pierce, claiming as administratrix of the estate of Laura Hayford, and also as devisee of the estate of Wm. B. Hayford under his will as above stated, offered to come in and prosecute the case under the petition of Laura Hayford and in whichever capacity she might be entitled to do so. The city objected, and moved for the dismissal of the petition because of the death of the original petitioner. This motion was pro forma overruled, and the city excepted. The question presented is whether the death of the petitioner abated the proceedings under her petition, or whether they survive her death, to be carried on by her representative or by her successor in title, not being her heir.

It should be borne in mind that this is not a proceeding for the recovery of damages, nor to determine who is entitled to damages for the taking. It is simply and solely a proceeding in the nature of an appeal to procure an estimate of the damages by the court in review of the estimate made by the municipal officers. Cases and arguments applicable only to the former class of proceedings would have no application to this, and do not need to be considered.

By the common law the death of a party as a rule abated all court proceedings by or against him. Green v. Watkins, 6 Wheat. (U. S.) 260, 5 L. Ed. 256; Dwinal v. Holmes, 37 Me. 97; In re Palmer, 115 N. T. 493, 22 N. E. 221. The...