Town of W. Hartford v. Coleman

• Decision Date: 05 March 1914
• Court: Connecticut Supreme Court
• Parties: TOWN OF WEST HARTFORD v. COLEMAN.

89 A. 1120

88 Conn. 78

TOWN OF WEST HARTFORD

v. COLEMAN.

Supreme Court of Errors of Connecticut.

March 5, 1914.

Appeal from Court of Common Pleas, Hartford County; Edward L. Smith, Judge.

Action by the Town of West Hartford against Minnie Coleman. From a judgment for defendant, plaintiff appeals. Affirmed.

Stewart N. Dunning, of Hartford, for appellant Henry J. Marks, of Hartford, for appellee.

PRENTICE, C. J. The plaintiff seeks the foreclosure of a lien filed against the defendant's property for an assessment made in 1907 for a local improvement The authority under which the assessment was made and certificate lodged is contained in chapters 49 and 489 of the Special Laws of 1899. Volume 12, Spec. Laws, pp. 40 and 483. These acts authorize an assessment of benefits which shall remain a continuing lien upon a prescribed certificate being lodged with the town clerk, but are silent upon the subject of notice to the landowner and opportunity for him to be heard. The complaint alleges the authorization and construction of the work, the assessment of a portion of the cost upon the defendant and his land, the lodging of a certificate of lien therefor, being the one sought to be foreclosed, and finally that, in making the assessment and lodging the certificate, the provisions of the two acts referred to and of another, confessedly of no present pertinence, were duly complied with.

The defendant demurred to the complaint for several reasons, which embody two of chief import These in substance are: (1) That no cause of action is stated or valid assessment or lien shown for want of allegation of notice to the defendant of an assessment made or proposed, or opportunity had by him to be heard respecting such assessment; and (2) that the acts under which the proceedings were had were unconstitutional and void, for the reason that no provision is made therein for either notice to the landowner or opportunity for him to be heard.

The first of these objections is well taken. A valid assessment was impossible without notice and opportunity to be heard to the landowner or their full equivalent in an opportunity to be fully and effectively heard at some stage of the assessment proceedings prior to the final fixing of the assessment. Manners v. Waterbury, 86 Conn. 573, 576, 86 Atl. 14; Londoner v. Denver, 210 U. S. 373, 385, 28 Sup. Ct. 708, 52 L. Ed. 1103. The only allegation of the complaint by possibility touching this subject is that which avers due compliance with the provisions of the acts under which the assessment was made and the lien continued. This averment certainly cannot be extended to include one that things not expressly required by the act were done.

Counsel for the plaintiff replies to this proposition that the service in this action may be regarded as notice, with the result that the defendant had ten days thereafter in which to appeal from the assessment, and thus obtain a hearing, This claim overlooks the fact that the plaintiff is seeking to enforce a lien. It does not help to establish the validity of that lien whose sole foundation is a valid assessment made and fixed. We have no occasion to notice other objections to it.

Thus far the conclusion of the trial court was sound, and its ruling sustaining the demurrer justified. It did not, however, stop here. It sustained broadly the...