Smith v. Town of New Haven

• Decision Date: 10 July 1890
• Parties: SMITH et al. v. TOWN OF NEW HAVEN.
• Court: Connecticut Supreme Court

22 A. 146

59 Conn. 203

SMITH et al.

v. TOWN OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 10, 1890.

Appeal from superior court. New Haven county; Fenn, Judge.

Application by Henry R. Smith and others to lay out a highway in the town of New Haven. From a judgment for plaintiffs overruling a remonstrance to the report of a committee, ami accepting the report, the town of New Haven appeals.

C. R. Ingersoll, for appellant.

C. H. Fowler and H. D. Russell, for appellees.

HALL, J. This is an application to the superior court under section 2713 of the General Statutes, for the lay-out or extension of a certain street in New Haven across the track of the Shore Line Railroad. The action was commenced in 1883. A statement of some of the proceedings since that time seems necessary to a consideration of the questions raised by the appeal to this court. The record discloses that the committee of three persons, appointed in 1886, whose duty it was to decide the questions involved in the application, made its first report to the superior court in May, 1887, after the parties in interest had been fully heard before all the members of the committee. By this report the committee found that common convenience and necessity required the crossing asked for, and made a lay-out and survey of the same, and an estimate of damages and benefits. The defendant remonstrated against the acceptance of this report, upon the sole ground that it failed to show with sufficient definiteness the lay-out and survey made by the committee, and the report was recommitted for a more particular description of the highway, showing lines and measurements. On May 24, 1887, the same committee, its three members participating, made a supplemental report, containing a more definite description of the extended highway, but failed to lay out and survey a part of the highway asked for by the application; for the reason, as stated in the report, that the plaintiffs and defendant had agreed that that portion had been previously laid out and denned. The defendant again remonstrated, upon the ground that the town of New Haven had made no such concession, and that the lay-out was irregular in not including the other portion of the highway asked for by the plaintiffs, and the superior court again recommitted the cause to the same committee. On the 19th of October, 1887, the committee, all its members having been present at the hearing and having joined in the report, made an additional report, in which they found that common convenience and necessity required the crossing asked for, laid out and defined the same, and estimated damages and benefits. Against the acceptance of this additional report the defendant remonstrated, by a remonstrance filed October 31, 1887, and by an amendment thereto filed in April, 1889, the principal grounds of which were that the report failed to show whether the highway laid out was to pass over or under the Shore Line Railroad; and that the committee had found the proposed highway to be of common convenience and necessity, and had assessed damages and benefits before ascertaining whether the proposed crossing was to pass over or under the railroad, and before ascertaining what the expense of its construction would be. Upon a hearing in the superior court upon this remonstrance in April, 1889, the court, having found that after the filing of the report of October 19, 1887, the railroad commissioners had, in July, 1888, directed the crossing in question to be carried over the railroad, and that they had determined the dimensions and material of the bridge to be constructed, recommitted the cause to the same committee for a further hearing and a final assessment of damages, and also to report whether, notwithstanding such action of the railroad commissioners, common convenience and necessity demanded the highway, which had then been laid out and surveyed by the committee. At the time of the hearing upon this remonstrance, in April, 1889, Aretas W. Thomas, one of the committee, had left this state, having on the 20th of October, 1887, removed his residence to the state of Texas. This fact was known to the defendant at this time, and at the time of the filing of this amended remonstrance in April, 1889. So far as it appears by the record, the defendant made no objection to a recommittal of the report to the same committee, and no request for the filling of the vacancy which it is now claimed then existed. After the recommittal of this report two members of the committee, on June 11, 1889, made their report to the superior court, signed by the two members only. Thomas was not present, and did not participate in the action of these two members of the committee. Reasonable notice was sent him to be present at the meeting of the committee, and he has tiled in the superior court a separate report, signed by himself only, in which he finds the extension of the highway to be required by common convenience and necessity, notwithstanding the direction of the railroad commissioners. By the report of June 11, 1889, signed by the two members of the committee, the committee refer to the reports before made by them, and find that at the hearing before the full committee, prior to the report of October 19, 1887, the committee "agreed and concluded" that the highway in question must of necessity be carried over, the railroad by a bridge, and that they, at that time, decided, in view of that fact, that common convenience and necessity required the lay-out as then reported by them, but that their conclusion with reference to bridging the railroad was not stated in their report. They then find that common convenience and necessity require the lay-out of the highway "as described in our report filed October 19, 1887," and make another and different estimate of damages and benefits.

It is only in respect to the question of damages and benefits that this report differs from that of October 19, 1887. The committee find by this report that the defendant appeared before them and objected to any action being taken by the committee unless all the members were present, and that this objection was overruled by the committee. To the acceptance of this fourth report of the committee the defendant remonstrated, upon the ground that only two members of the committee appointed by the court participated in the proceedings not covered by previous reports; that, the removal of Thomas to the state of Texas having incapacitated him to discharge the duties of the office of a member of the committee, the committee under its original appointment was without power to act...