Stevens v. Borough of Danbury

• Decision Date: 04 May 1885
• Citation: 53 Conn. 9,22 A. 1071
• Court: Connecticut Supreme Court
• Parties: STEVENS et al. v. BOROUGH OF DANBURY.

22 A. 1071

53 Conn. 9

STEVENS et al.

v. BOROUGH OF DANBURY.¹

Supreme Court of Errors of Connecticut.

May 4, 1885.

Case reserved from superior court, Fairfield county.

Action by Darius Stevens and others against the borough of Danbury, for money claimed to be due and owing for the taking of land.

L. D. Brewster and B. A. Hough, for plaintiffs.

W. Burke, G. Stoddard, and D. B. Booth, for defendant.

GRANGER, J. By a resolution of the general assembly passed in 1860, and added to in 1862, the borough of Danbury was empowered to supply itself with water by purchasing, or by taking for the purpose, any stream of water, water privileges, or lands necessary or convenient for the purpose within or without the limits of the borough; with a provision for the assessment of the value of any property taken otherwise than by purchase, and for payment to the owner of the property so taken. Under this resolution the borough, at a legal meeting held on the 16th day of July, 1880, voted to procure a supply of water for the use of the borough "from a stream running near the residence of Samuel Gregory." On the 26th of September of that year the borough purchased of Gregory certain lands through which the stream ran, and which were below certain lands, and a water privilege on the same stream belonging to the plaintiffs. The lands were purchased of Gregory with the intention of constructing a dam thereon across the stream, making a pond or reservoir, which would have set the water back upon and have destroyed the mill privilege of the plaintiffs. Under the resolution before mentioned the water commissioners of the borough, not being able to agree with the plaintiffs as to the compensation to be made them for the taking of their mill privilege and lands, applied to a judge of the superior court for the appointment of appraisers to assess the damage. Appraisers were appointed, and a hearing was had before them, both parties being present, and they made their report, assessing the damages at $3,000. This report was duly recorded in the records of the superior court for Fairfield county, and the proceedings were in all respects according to the provisions of the resolution in such a case. On the 29th of June, 1881, the borough, at a legal meeting, voted to rescind the vote of July 16, 1880, and nothing further was done with regard to the taking of the plaintiff's land and privilege, and the $3,000 assessed as damages for the taking was not paid. Notice of this action of the borough was given to the plaintiffs, and they afterwards sold to other parties, and conveyed by warranty two parcels of the land which the borough had proposed to take. The plaintiffs now sue the borough to recover the $3,000 assessed in their favor. It is found that the defendants never took actual possession of the lands in question or of the mill privilege, or in any manner occupied them or interfered with their occupancy by the plaintiffs. Had they in theory taken possession, or by what they did become the owners of the property, so that they were hound to pay the assessed value to the plaintiffs? The resolution of the general assembly empowers the water commissioners of the borough to "purchase, and take conveyances in the name of the borough of, all lands, property, or privileges...