Sauter v. Mahan

• Decision Date: 05 August 1920
• Court: Connecticut Supreme Court
• Parties: SAUTER v. MAHAN et al.

111 A. 186

95 Conn. 311

SAUTER v. MAHAN et al.

Supreme Court of Errors of Connecticut.

August 5, 1920

Appeal from Court of Common Pleas, New London County; Charles B Waller, Judge.

Taxpayer's suit by Englebert J. Sauter against Bryan F. Mahan and others, for cancellation of certain releases of liens for sewer assessments, for an adjudication that the liens are valid and subsisting incumbrances on the defendants' lands, and for an injunction restraining the City of New London from releasing the liens until paid. From judgment for plaintiff, defendants appeal. Error in part and case remanded.

In 1894 the city of New London constructed a sewer through certain lands then owned by the grantors of the defendant Mahan, and at some later date, not definitely found, constructed a highway known as Elm street over a part of the land. No assessment of benefits or damages on account of the construction of the sewer was attempted to be made until July 11, 1907, and no reason for this delay of 13 years is apparent on the record. The defendant bought the four parcels of land in question on April 23, 1900, and it is found that-

" At the time the defendant (Mahan) took title to the land in question, and on the 11th day of July, 1907, the sewer was so laid as to be available for connection with the parcels of land in question."

No other sewer benefiting the land had been constructed when the assessments were laid in 1907. Notices of the pendency and completion of the sewer assessments were duly given by publication, as required by the city charter, and no appeal from the assessments as made was taken by the defendant Mahan. On October 9, 1907, certificates of liens describing the parcels of land in question were duly lodged with the town clerk and recorded. The assessments have not been paid.

On February 19, 1915, the board of water and sewer commissioners of the city voted to reconsider the action of the board in making the assessments in question, and, by direction of the board, its secretary executed and caused to be recorded discharges of the several assessment liens above described. At the time these votes were taken and the releases executed the charter of the city provided in respect of sewer assessment liens that such a lien " may be discharged by a certificate of the mayor or clerk of said city lodged and recorded in the same manner as the original."

This action was brought in 1916 and judgment was rendered that the votes of the board of water and sewer commissioners purporting to reconsider the assessments in question were ultra vires and void; that the releases of lien filed pursuant thereto should be canceled of record, and that the defendant Mahan should surrender the originals thereof; that the liens claimed by the certificates of lien described in the several counts of the complaint were valid and subsisting incumbrances on the seven parcels of land described therein; and that the city of New London should be enjoined from executing any further releases or discharges of said liens until the same are paid.

Charles B. Whittlesey, of New London, for appellants.

Charles Hadlai Hull, of New London, for appellee.

BEACH J.

The plaintiff's right as a taxpayer to maintain this action is not disputed. The action is brought against the city of New London and the Savings Bank of New London claiming to have a mortgage or mortgages upon the premises in question, as well as against the defendant Mahan, the owner of the premises. The city of New London did not appear, and judgment has been entered against it by default. The Savings Bank of New London has not appealed.

We take up first the claim that the trial court erred in ruling that the votes of the board of water and sewer commissioners passed in 1915, purporting to reconsider the...