Shannahan v. City of Waterbury

• Decision Date: 13 December 1893
• Citation: 28 A. 611,63 Conn. 420
• Court: Connecticut Supreme Court
• Parties: SHANNAHAN v. CITY OF WATERBURY.

28 A. 611

63 Conn. 420

SHANNAHAN

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

Dec. 13, 1893.

Appeal from superior court, New Haven county; R. Wheeler, Judge;

Proceedings by the city of Waterbury to condemn land for the alteration and widening of a public street. John Shannahan appealed from an assessment of damages. Prom a judgment for Shannahan, the city appeals. Reversed.

Lucien P. Burpee, for appellant.

Webster & O'Neill, for appellee.

CARPENTER, J. In 1889 the city of Waterbury accepted the layout of an alteration and widening of one of its public streets known as "South Riverside Street" The improvement took the whole of a small wedge-shaped piece of land containing about 1,200 square feet, with a building thereon standing. The damages assessed for such taking were $2,275. From that assessment an appeal was taken to the superior court The case was referred to a committee. On the trial a question arose whether the damages should be assessed as of the time when the assessment was made by the common council, or as of the time of hearing before the committee. Damages were assessed in the alternative,—$3,000 if the earlier day was adopted, and $3,500 if the later. The superior court accepted the report, and rendered judgment for the higher sum. The defendant appealed to this court.

There is, in effect, but one error assigned, and that is the first: "The court erred in not assessing the damages of the plaintiff according to the value of his land at the time when such land was taken for the public use." The other two assignments are but a repetition of the first in another form. Another statement of the question before us is, when was the land taken for the public use? The city insists that it was taken when the assessments made by the common council became due,—September 7, 1889. The plaintiff insists that it was taken when the judgment was rendered on the appeal by the superior court,—May 31, 1893. The superior court sustained the plaintiff's claim. In this we think the court erred. The provisions of the charter bearing on this question are as follows: Section 27 makes the city a highway district, and vests in it exclusive authority over the streets and highways therein, "and exclusive power to lay out, make, or order new highways and streets within the limits of said city, and to alter, repair and discontinue all highways," etc. The court of common council is authorized to appoint a board of road commissioners, with power "to lay out, construct or alter public squares, parks, highways, bridges or walks in said city, whenever ordered to do so by said court of common council." Before proceeding to lay out or alter any street, etc., the thirty-sixth section requires said board to cause reasonable notice to be given to the owners of the land to appear before the board and show cause why the layout, etc., should not be made. Section 37 is as follows: "Whenever said board shall have decided to lay. out any such square, park, street, highway, bridge or walk, or alteration thereof, they shall make a report in writing of their doings to said court of common council, which report shall embody a survey containing a particular description of such square, park, street, highway, walk, or alteration thereof; and whenever said report shall have been accepted by said court of common council, and recorded in the records of said city, and just compensation shall have been made to the persons whose property is to be taken for such public improvements, or shall have been deposited in the treasury of said city, to be paid to them when they shall apply for the same, in the manner hereinafter prescribed, then such square, park, street, highway, bridge or walk, or alteration thereof and the land embraced thereby, shall be and remain taken and devoted to the public use for which it shall have been so laid out." Section 38 provides for the assessment of damages and benefits to be made by the court of common council, or by a board of compensation by it appointed. It is then provided as follows: "Upon the completion of all their assessments (either...