Healey v. City of New Haven

Carpenter, J.

The petition alleges in substance that the petitioner is the owner of certain buildings in the city of New'Haven on Congress Avenue, erected in the year 1861 to correspond with the then established grade of the street; that in the year 1867 the grade was changed, and he was thereby compelled- to raise his buildings to adapt them to the grade as changed, at an expense of more than $7,000, for which he received no compensation; that in the year 1874 the common council ordered another change of grade, and commenced the work of re-grading and filling up the street against the remonstrance and protest of the petitioner ; that he was about to resist the work by physical force, or by obtaining an injunction, when he was assured by the board of road commissioners, the mayor, the corporation counsel and other officers, that if he would refrain from doing so he should be fully compensated by the city; that relying upon these assurances he did refrain from resisting the work physically and by legal proceedings; and that thereupon the work was consummated, *313 and he was obliged to raise his buildings, re-lay his side-walk, curb stones, &c., at an expense of over #3,500.

It is then alleged that after the commencement of said work, and after the petitioner had commenced raising his buildings, some one, in the interest of the city and in fraud of the petitioner’s rights, caused or procured the legislature, without his knowledge or consent, to repeal a statute law allowing the city to make compensation, and that he did not know of the repeal until after it was too late to appeal from the order making the improvement, and that the city now refuses to pay the damages thus sustained. He also alleges that he has suffered damage by reason of negligence and the unskillful manner of doing the work, unnecessary delay, &c., claiming to recover #15,000 damage, with a prayer for general relief. To this petition the respondents demurred, and the question of its sufficiency is reserved for the advice of this court.

1. The law in this state must be regarded as settled, that'towns and cities charged with the maintenance of public highways may change the grade of streets and highways from; time to time, as the wants of the public may require, without-being liable for the incidental and necessary damage caused: thereby to the adjoining proprietors. And this rule applies in chancery as well as at law. It must be confessed however ■ that this rule lodges in the hands of the local authorities a-power, which, if not positively dangerous, is certainly liable to be abused, and a rigorous application of the rule will sometimes operate harshly and even unjustly. Hence the law differs in different jurisdictions. In Illinois compensation is-, secured by a constitutional provision. In Massachusetts it is provided for by statute. In Ohio the coui’ts upon general principles have established a qualified liability. The abutting proprietors are required to build with reference not- only- to the existing grade but also to the probable wants of the public in the future, and if they use due diligence in that respect and suffer damage in consequence of a subsequent changeiof grade they are entitled to compensation. This rule, while *314 essentially just, is nevertheless difficult of application and productive of litigation.

Our own rule, as it seems to us, is founded upon correct principles. If properly guarded, and applied only to cases within its reason, it is easily applied and need not operate unjustly. It is based mainly on two considerations, which involve only familiar and well recognized principles. 1st. Whenever land is taken for a street or highway it is presumed that damages are assessed with reference to any possible use of the land for such a purpose; and where the face of the land is such, or the relations of the proposed street to other streets are such, as to render it probable that changes in the grade will be required, damages are supposed to be estimated accordingly. 2d. The ordinary principle that every man has a right to use his own land as he pleases provided he does no unnecessary damage to his neighbor. The town or city, as the case may be, is practically the owner of the land for all the purposes of a highway. So long as it is used strictly for those purposes with due regard for the rights of others no liability attaches. If however the work is improperly or negligently done, thereby causing damage to others, the corporation like an individual is liable. Mootry v. Danbury, 45 Conn., 550 . If the improvement is maliciously made for the purpose of injuring another—if such a case can be supposed and proved—it would seem that the corporation, or those acting in its name, ought to be liable as a private person would be under like circumstances.

If the authorities act unnecessarily and unreasonably a superficial view of the subject would suggest that the town or -city should be liable; but liability on that ground, besides being productive of inconvenience, would not rest upon any sound principle. Towns and cities must necessarily judge of the wants of the public and of the necessity for any given improvement, and their decision must be final unless reviewed by the courts in a proceeding in the nature of an appeal. To hold that the courts might collaterally pass upon that question in an action for damages would be productive of much mischief.

*315 The cases in which injustice may be done from any such cause it is believed will be rare. For such as may exist a remedy by way of an appeal will better protect the rights and interests of all concerned than an action for damages.

From these considerations it is apparent that the petitioner stands on no higher ground in equity than in law.

2. The petitioner claims that he has some equities growing out of the promise by the officials who acted in behalf of the city that his damages should be paid, in connection with the statute, which was in force for a short time, providing for the payment of damages in such cases.

If that law was in force when the improvement was commenced and the alleged promise made, so that it could be said that the improvement was undertaken and the assurance given under and in view of the law, it may be that the petitioner would be entitled to some redress, either in law or equity. The form of the remedy under the Practice Act now in force is immaterial. But the fair import of the petition is that the change of grade was ordered by the common council, the work necessary to carry it into effect was commenced, and the alleged promise to pay damages was made, in the year 1874. We think the law as it then stood, or at least as it stood when the promises were made, must govern this transaction throughout. The statute law' referred to had no force as such during the year 1874. It was not enacted by the legislature of that year in the regular course of legislation. It first came into existence as a law on the first day of January, 1875, and then only by force of the general statute carrying into effect the work of the revisors. The parties therefore making the promise were acting without authority, and their action does not bind the city. Should it hereafter appear that the work of re-grading and filling up the street was commenced and the promises referred to made after the law took effect, or if during the progress of the work the law took effect and the promise was subsequently made, the aspect of the case may be entirely changed.

This view of the case renders it unnecessary to consider the effect of the repeal of the statute upon the petitioner’s rights.

*316 3. It is further claimed that these promises operated to mislead the petitioner, and consequently that the city is now estopped from denying its liability to pay damages.

The party claiming the benefit of an estoppel must show that he relied upon the words or conduct of the adverse party and was thereby induced to change his position injuriously to himself if the words and representations may be shown to be untrue. The change of position alleged by the petitioner is an omission to do two things: first, to resist the work of the improvement by physical force, and second, to institute legal proceedings to restrain the work. Physical resistance would have been illegal. It was clearly his duty not to resort to it. Refraining from a violation of law was not such a change as the law of estoppel requires. Legal proceedings would have been futile. Fellowes v. New Haven, 44 Conn., 240 . A failure to institute legal proceedings when the court can see that such proceedings if instituted must necessarily be unsuccessful, is not such a change of position as will justify the application of the doctrine of estoppel.

4. There is not a sufficient allegation of negligence and unskillfulness, 'inasmuch as it is not alleged in what the negligence or unskillfulness consisted.

We think the bill is insufficient.

In this opinion the other judges concurred.