Holley v. Town And Borough of Torrington

• Decision Date: 13 December 1893
• Citation: 63 Conn. 426,28 A. 613
• Parties: HOLLEY v. TOWN AND BOROUGH OF TORRINGTON.
• Court: Connecticut Supreme Court

28 A. 613

63 Conn. 426

HOLLEY

v. TOWN AND BOROUGH OF TORRINGTON.

Supreme Court of Errors of Connecticut.

Dec. 13, 1893.

Appeal from superior court, Litchfield county; R. Wheeler, Judge. Action by Nellie W. Holley against the town and borough of Torrington for injury to land caused by a change of street grade. From a judgment for plaintiff, defendants appeal. Affirmed.

George B. Terry and Gideon H. Welch, for appellants.

James Huntington and Arthur D. Warner, for appellee.

ANDREWS, C. J. The plaintiff, Nellie W. Holley, is the owner of a parcel of land, with buildings thereon, situated in the town and borongh of Torrington, bounded on the south by Water street, so called, and on the east by Prospect street. At a town meeting of the town of Torrington holden on the 5th day of January, 1891, it was voted: "That the selectmen of this town are hereby authorized and directed to grade and lower Water street as follows: Commencing in a line of the west side of Prospect street, at a point five feet below the present grade of said street, and grade and level to a true grade to Main street, and from starting point to grade and level said street to a true grade to John street or Naugatuck Railroad, as they shall find it necessary to protect contiguous streets." At a meeting of the warden and burgesses of the borough of Torrington, held on the 15th day of April, 1891, it was voted: "That the town authorities, when they shall cut down Water street and the southern terminus of Prospect street, also shall cut down the sidewalks on each side to the same grade as the streets, and charge the expense of cutting down said sidewalks to the borough." The borough of Torrington lies wholly within the town, and the control of all the sidewalks within its limits is, by its charter, given to the borough. The said streets—Water street and Prospect street—are ancient highways in the town of Torrington, laid out more than 60 years ago, and have been constantly used ever since. Such use had established a grade for the street to which the plaintiff had conformed in erecting the buildings on her said piece of land, namely, a dwelling house, a barn, a store with tenements, and a building used for a photographic gallery. She had also constructed a sidewalk, and either herself or her predecessors had set out shade trees, which were at that time of 50 or more years' growth, between the sidewalk and the wrought part of the highway. Subsequent to the passing of said votes, and prior to the commencement of this action, the defendants, by their proper authorities, claiming to act by virtue of said votes, changed the grade of said street substantially as provided for in the same, thereby lowering the grade of Water street in front of the plaintiff's premises seven feet or more, and cut down and removed the shade trees and destroyed the sidewalk. The change in the grade of the streets so made by the defendants seriously damaged the plaintiff's said property. Before proceeding to make such change in the grade of the streets, neither the selectmen of the town nor the officers of the borough gave any notice to the plaintiff, in writing or otherwise, that they intended so to do, nor did they, or either of them, afford her any opportunity to be present and to be heard as to such change of grade, or as to the damages that would thereby be done to her property, nor did they, or either of them, ever attempt to agree with the plaintiff as to such damages. In this condition of things the plaintiff brought the present complaint to the superior court in Litchfield county, setting forth a statement of the facts constituting her cause of action, and demanding that a committee be appointed to ascertain her damages, and that she have judgment therefor against the defendants. The complaint was duly served upon the defendants, and returned to the superior court at its October term, 1891. The parties appeared at the court, and the defendants filed an answer, to which the plaintiffs made a reply, and a committee was duly appointed. The parties appeared before the committee, and were fully heard, and they then agreed that the damage, if any should be found, should be assessed jointly against the town and the borough. On the 6th day of September, 1892, the committee made its report, finding the special damages done to the plaintiff's land by reason of change in the grade of the street to be the sum of $2,948.14. On the 6th day of October following, the defendants filed their motion to have the cause dismissed for want of jurisdiction. This motion the court denied. Thereupon the defendants remonstrated against the acceptance of the report. The court overruled the remonstrance, accepted the report, and rendered judgment for the plaintiff to recover said damages of the defendants, with costs. From that judgment the defendants appealed to this court, and have assigned various reasons of appeal. These all come within one or the other of three propositions. Has the plaintiff any remedy at all? And, if so, may the remedy be obtained in this action? And may she...