Kellogg v. City of New Britain

• Decision Date: 12 September 1892
• Court: Connecticut Supreme Court
• Parties: KELLOGG v. CITY OF NEW BRITAIN.

24 A. 996

62 Conn. 232

KELLOGG

v. CITY OF NEW BRITAIN.

Supreme Court of Errors of Connecticut.

Sept. 12, 1892.

Appeal from superior court, Hartford county.

Action by Henry Kellogg against the city of New Britain to recover damages for the wrongful taking of a stream for sewer purposes. Judgment for plaintiff. Defendant appeals. Affirmed.

F. L. Hungerford, for appellant.

C. E. Perkins, for appellee.

ANDREWS, C. J. The defendant has appealed to this court. The questions of law arising on the record which the defendant has presented on its brief for review are these: (1) Did the act of 1872, amending the charter of New Britain, intend to confer upon the city the right to use Piper's brook for sewer purposes? (2) If it did so intend, could the legislature lawfully confer such power? (3) Is it sufficiently alleged in the second defense that the action of the defendant in using said stream for sewer purposes was taken under said act? (4) Was the allegation in the amended answer, that the use which the city was making of Piper's brook was a natural, reasonable, and proper one, not inconsistent with the rights of the plaintiff, demurrable? (5) Should the act of 1872, and the proceedings taken under it, by virtue of which it was claimed the plaintiff's rights in the stream were condemned, have been received in evidence, either as a defense or in mitigation of damages? (6) Was the request of the defendant that the jury should be told that the plaintiff would have a right of action against the defendant for damages accruing subsequent to the date of the complaint properly refused?

We pass the first two of these questions without discussion. A decision upon either of them is not necessary for the disposal of this case. We assume, for the purposes of the present case,—and only for the purposes of the case,—that both are to be answered in the affirmative. However extensive the authority of the legislature may be, it is quite clear that the legislature of 1872 did not intend by the act of that year to grant to the city of New Britain the right to take Piper's brook, or any other stream, for a sewer until that city should first pay all the damages it might thereby do to any individual. The constitutional prohibition against taking private property for public use, without making just compensation therefor, was doubtless in the legislative mind. Careful provisions are contained in the act to this end. First, any agreement with the person who may be damaged; and, in cases where an agreement cannot be reached, the method by which to ascertain by judicial process the damages to any person is prescribed. The act makes the payment of al) damages a condition precedent to the rights of the city to take any stream for a sewer. The language is clear: "Said damages being paid or deposited in the city treasury, the city may go on and complete said public improvement, and do all acts necessary and convenient for that purpose 'without further liability in the premises.'" Failing to make such payment, the city continues liable for any and all damages it may have caused as if said act had not been passed. It nowhere appears in the defense that the city had ever tried to agree with the plaintiff upon his damages, or had ever taken any steps to ascertain by the method pointed out in the act, or in any other way, what his damages were, or that it had ever paid to him his damages. We think, then, that it is not sufficiently alleged in said defense that the action of the...