Peck v. City of Bridgeport

• Decision Date: 07 January 1903
• Parties: PECK v. CITY OF BRIDGEPORT.
• Court: Connecticut Supreme Court

53 A. 893

75 Conn. 417

PECK

v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

Jan. 7, 1903.

Case reserved from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by Mary B. Peck, individually and as executrix, against the city of Bridgeport, to remove a cloud on title. Defendant demurred to the complaint, which was reserved for the opinion of the supreme court Demurrer sustained.

Thomas M. Cullinan, for demurrant.

Stiles Judson, Jr., and Eugene B. Peck, opposed.

TORRANCE, C. J. This action is brought by Mary B. Peck individually and as executrix of her father's will. The facts set out in the complaint and admitted by the demurrer are in substance the following: In May, 1896, Carlos Curtis, the father of the plaintiff, died, owning the land here in question and other property. He left a will, made part of the complaint, in which the plaintiff was named as executrix. By the will the use of the remainder of the estate, including the land here in question, was given to the widow of the testator for life, then at her decease to the plaintiff for life, then at the death of both the estate was given "absolutely" to the "heirs at law" of the daughter. By the will, also, the daughter, as executrix, was empowered to sell and convey or mortgage any part of said remainder estate, and to appropriate to her own use any part of the principal thereof, if, in her opinion, her necessities required it. She duly qualified as such executrix in June, 1896, and has remained such ever since. The court of probate limited a time for presenting claims against said estate, and prior to December 17, 1897, all such claims were paid, and ever since said date the plaintiff, as life tenant, has been in the exclusive possession and enjoyment of said remainder estate, including said land. This land fronted on State street, and in February, 1899, the city of Bridgeport, under its charter, for the purpose of widening State street, took by proper proceedings a strip of said land 5 feet wide and 98 feet long, and the damages therefor were duly assessed in favor of the "estate of Carlos Curtis," and paid to the plaintiff as executrix of said estate. Subsequently said strip of land was appropriated and used as a part of State street On February 20, 1899, the common council ordered a hearing upon the paving and asphalting of that part of State street created by widening it in the manner hereinbefore described, "but failed to notify the owners of the land" here in question of said hearing, and only directed notice to the "estate of Carlos Curtis," which was received only by Mary B. Peck "as executrix of said will." In May, 1899, the council ordered said part of said street to be asphalted, and referred the matter to the board of appraisal for a hearing upon the assessment of benefits and damages. The board of appraisal "failed to give any notice to the owners of said land, but only caused notice to be directed to the 'estate of Carlos Curtis,' which notice was only received by said Mary B. Peck as executrix, and said owners of said land did not appear, nor have any opportunity to appear and be heard, relative to said assessment" Said board "arbitrarily apportioned one-half of the cost of asphalting said street among the class of abutting owners upon said street found to be especially benefited by said public improvement, according to the frontage upon such street by each of said class of owners, and did not ascertain, other than by said arbitrary apportionment according to frontage, the special benefits, if any, received by the plaintiff or the other abutting owners, and did not ascertain whether said special benefits received equaled in fact said sum of one-half the cost of said improvements, but determined the total of said assessments of benefits so apportioned solely in reference to the sum of one-half the cost of said improvement." Said board "purported to assess against 'the estate of Carlos Curtis' as special benefits received by said estate the sum of $249.10, and did not purport to assess special benefits against nor apportion said one-half of the cost among, the owners" of the land in question, "although said repaying or asphalting was of a permanent nature, and any special benefits, if any, in fact, flowing therefrom, would be of...