State v. Kilburn

• Decision Date: 09 June 1908
• Citation: 81 Conn. 9,69 A. 1028
• Court: Connecticut Supreme Court
• Parties: STATE v. KILBURN et al.

69 A. 1028

81 Conn. 9

STATE

v. KILBURN et al.

Supreme Court of Errors of Connecticut.

June 9, 1908.

Case reserved from Court of Common Pleas, Hartford County; John Coats, Judge.

Suit by the state against Marguerite F. Kilburn and others. There was a demurrer to the answer of defendant the city of Hartford, and the cause was reserved for the advice of the Supreme Court of Errors. Trial court advised to sustain the demurrer.

Edward M. Day and Marcus H. Holcomb, Atty. Gen., for plaintiff. Lawrence A. Howard, for defendant city of Hartford.

BALDWIN, C. J. The charter of the city of Hartford authorizes the court of common council to assess the whole or any part of the expense of constructing a sewer upon the persons whose property is in its opinion specially benefited thereby, or, at its option, directly upon any land so benefited. Any such assessment of benefits "shall be a lien upon the land on account of which they were assessed," commencing from the time of the passage of the vote ordering the construction of the sewer, and can be perpetuated by filing a proper certificate with the town clerk. Hartford v. Mechanics' Savings Bank, 79 Conn. 38, 63 Atl. 658. The charter also provides that, for any expense incurred by it in removing snow from a sidewalk, the city shall have "a claim against the owner or proprietor of the land adjacent to such sidewalk, which may be collected and enforced at law, and a lien and real incumbrance in favor of said city upon said land," which can be perpetuated by a similar certificate. Liens evidenced, respectively, by a certificate of the former kind, for a sewer assessment against the estate of one Kilburn, and certificates of the latter kind for a claim against the same estate for the expense of removing snow from a sidewalk, were imposed upon a lot of land In Hartford which had previously been mortgaged by Kilburn to the state to secure a note for a loan made from the school fund and payable on demand at the office of the school fund commissioner, with interest payable semiannually. By Gen. St. 1902, § 1954, city liens for assessments of benefits for any public work may be foreclosed in the same manner as tax liens. They put the owner of the land against whom the assessment is made in the position of a debtor to the city. Hartford v. Mechanics' Savings Bank, 79 Conn. 38, 40, 63 Atl. 658. They also rank before mortgages to private individuals previously existing and recorded. Norwich v. Hubbard, 22 Conn. 587. Do they have like priority over such a mortgage to the state?

The city could not, without the permission of the state, assess benefits against it as the owner of land benefited by a public improvement. General expressions, granting it liberty to assess all persons specially benefited, would not import such permission. The state holds the immunities in this respect belonging by the English common law to the King. It is not to be sued without its consent. Its rights are not to be diminished by statute, unless a clear intention to that effect on the part of the Legislature is disclosed by the use of express terms or by force of a necessary implication. State v. Hartford, 50 Conn. 89, 90, 47 Am. Rep. 622. With respect to such assessments on land "belonging to" the state, the charter of Hartford (section 132) now grants full power. The term "belonging to," as thus used, imports beneficial ownership. Brooks v. Hartford, 61 Conn. 112, 114, 23 Atl. 697. There is no implication that like power is given as to land on which the state may have a mortgage for the benefit of the school fund....