Morning journal and courier., 1883-02-24
Interesting to Property Owners.
Important Questions InvOIved-The Text of the Supreme Court Ruling in the Case Of HeaIy vs. the City Of New

NSACeN-SA-1 Text the Supreme Court Ruling in the Case of HeaIy vs. the City of New Haven. BARyHonoMEw HEAIr)
 CITY OF NEW HAVEN.
 SUPREME CoURT OF ERRORS, New Haven Co.,, Dec. Term, 1881. OPINION or THE COURT. Carpenter, J. The plaintiff claims to have suffered dam- age in consequence of 8 change in the gsado of the street on which his property is situa- | ted. The law of this State is so that he has | no remedy unless the peculiar circumstances | of the case make it an exception to the rule. The case shows that the Common Council l in August, 1874, ordered the change of grade, pursuant to which order the Board of Road Commissioners soon after established the | grade. In March following the plaintiff pe-
 fitioned the Common Council to annul the | order and on that petition the case was | opened for rehearing before the Road | Commissioners. The result is not expressly stated but from the statement of facts as claimed by the plaintiff, and which he offered | to prove, it appears that the order fixing the I grade WAS affirmed and that the improvement | was subsequently, made.
 | The seventh and eighth paragraphs of the
 plaintiffs complaint are as follows
 l 't7. That at the time said grade was estab l lished by said city under said order of 1874, | to wit, in June, 1875, and in the months of April and May, 1875, said city, by it's Mayor, 1 Corporation Counsel, Board of Road Com | missioners, and other officials of said city, l represented, promised and assured the com plainant that if he would not appeal from 1 said order changing said grade, or otherwise oppose the execution of the same, but allow the work to go on, he should be fully com pensated in money by said city for all the
 damages he would sustain by reassn of the
 changing of said grade; that said promises
 and representations were made, and said as
 surances given, in view of public statute of
 the State allowing such compensation to be
 made; that said promises and assurances
 were made and given while said statute law
 was in force, and before and while said work
 by said city was being done upon said street
 under and by virtue of said orders.
 ''8. That the complainant, believing in
 the truth of and relying in good faith upon
 said promises assurances and representations ! by said city officials, and having satisfied | himself of the existence of said statute al . l lowing compensation to be made, neglected | to take an appeal from the order establishing
 said grade, as he otherwise would have done
 but for said statute and said promises and 1 assurances to him made as aforesaid"
 | Evidence to prove these allegations was of
 fered by the plaintiff, and on objection was
 excluded by the court.
 These allegations were pertinent and were material part of the plaintiffs case as he I presented it. The rejection of the evidence
 
 1 this court in AG0nas v. WGy, 32 Conn.,, 16O. A new trial must be advised unless the court l can see clearly that the allegations, if proved,
 would not, in connection with the admitted | and proved facts in the case, give the plain ! tiff good cause Of action.
 From January 1st to June 24th, 1875, the l following statute was in force: ''When any
 owner of land, adjoining highway, or of
 any interest in such land, shall sustain dam age to his property, by reason of any. change IS SoI.v hrv %I,a
 city or borough in which such highway may
 be situated, such town, city or borough shall | be liable to pay to him the amount of such
 damage, to be ascertained in the manner l provided for ascertaining damages done by
 laying out or altering highways therein. !" Gen. Statutes, p. 236, sec. 31. This statute,
 however, was not in force when the improve
 ment was first ordered nor when the work
 was done.
 We think the law is so that the statute, as it existed when the improvement was under
 taken or entered upon, must determine the l rights of the parties. The presumption is 1 that it was undertaken in view of the stat | ute, the parties respectively accepting the ! privileges which it conferred and the liabili- ties which it imposed. EGtozs v. CSty of EZ- | gi7a, 93 H., 535 HeGly v. City of Nec0 Rd-
 Ue1a AT Conn, 3o5. A contrary rule might I operate as a trap. This case is good illus tration. The plaintiff claims that he ceased opposition for the reason that the statute gave him damages, whereas if the law had been otherwise he might have resisted suc- cessfuly. If now subsequent repeal of the
 statute is to deprive him of his remedy it might operate very unjustly.
 The question then recurs, When was this improvement entered upon? Was it when
 the Common Council first ordered it ? or , when that order was affirmed?
 The change of grade was ordered Septem- | Der 24th, 1874. If the work had been do ne 1 under that order without any intervening : | action by the Common Council or the Board !; l of Road Commissioners, the improvement would have dated from that day. But in l March following, before anything had been : done under the order, when the statute was I I in force, and while the Common Council had 1 ! the whole matter in it's control, the plain ! tiff's pecition to revoke the order was re- 3 ferred to the Board of Road Commissioners , for hearing. The effect of that reference . l was to suspend the operation of the order. | For the time being it was practically annulled 3 and it was an open question whether the goods should be changed until final action on
 that petition. Such action was had on the
 10th of June, when the order of September 24th was affirmed. The affirming vote re- vived the operation of the order and set the | work in motion. That vote was passed while the statute was in force. They considered the question of changing the grade in view of it's provisions and determined to make the
 change. They thereby assumed all the bur- dens which the statute imposed. Whatever 1 may have been the form of the vote it was equivalent in it's effect to an order of that date to change the grade.
 The case was argued to some extent upon the theory that the liability of the city was on the ground of promises made by the city officials. But the motion shows that
 the plaintiff did not offer to prove any express promise to pay the damages; it | was only an assurance that the law was so that he would be entitled to have damages | Wa nrA aafiS Ad that fha oifxz cannot be held liable on that ground. A knowledge of the law was open to both
 parties. An expression of opinion as to ' what the land was by the city authorities
 could raise no liability. Even an express promise would not, for they were agents of I the city only in a qualified sense; their agency was confined strictly to their official duties, and it was no part of their duty to create a liability by promises or otherwise The law and not the assurances given im- posed the liability.
 The assurances were unimportant except as they tended to show that both parties pro-
 ceeded in view of the statute and with the expectation that damages would be paid i;
 and that affects only the equities of the case. The 31st section of the charter (special laws vol. 6, D. 4S7,) gives the plaintiff Q , right of appeal from any order of the Com- mon Council or of the Board of Road Con- missioners changing the grade of the street. Now if he refrainsd from appealing from the order of June 10th, 1875, on the ground that
 the law gave him damages the equities of the case are certainly pretty strong not that
 those equities would of themselves,
 independently of the statute, give right of
 action, but being founded on the statute tkey
 should incline the court to give his claims
 favorable consideration. And they afford an
 additional reason why the repeal of the l statute should not affect the case.
 question is made whether the defendant is liable in this form of action. The statute |, in terms makes the city liable for the dam , ages, Ito be ascertained in the manner pro- vided for ascertaining damages done by lay ing out or altering highways therein.n The