Page images

Granger agt. City of Syracuse.

ment. For this was not such an improvement as the common council are prohibited from making without the application or consent of the majority of the owners of the property upon the line of the improvement. This restriction relates to such strictly local improvements as are confined in their benefits to the localities in which they may be made. And for that reason, the expenses of making them are assessable only upon the property existing in the locality benefited by them. (Laws of 1857, Chap., 132, Title 7, § 1).

The opening and widening of a street is an improvement of a different character. For while it may improve the property, and promote the convenience of the locality through which it extends, and on that account, constitute an important local improvement, it also, by affording an avenue for travel and transit to the public, produces benefits and advantages rendering it a public as well as a local improvement. And where this latter purpose may be subserved by laying out, opening, or widening public streets, as it commonly is, the duty of promoting and securing it is paramount to the mere convenience and profit of the locality through which it may be done. Cases

Cases may, and no doubt frequently do, occur where the convenience and interests of the public and the owners of the property affected by improvements of this nature, may be antagonistic and conflicting, and where, on that account, the laying out, opening, and widening of streets would be undesirable with the latter, though positively and necessarily required by the former. If the work could not be performed without the assent or application of the owners of the property in such cases, great public inconvenience would be occasioned by that inability. It is not therefore to be supposed that the legislature would be disposed' to subject improvements of this public character to a restraint of the kind presented by the objection.

The act itself does not render the power of the common

Granger agt. City of Syracuse.

council to open and widen streets dependent upon the application or consent of a majority of the owners of the property on the line of the improvement, but, by entirely independent provisions of the charter of the city, provides for the manner in which work of that character is to be done. These provisions do not contemplate any precedent application or consent on the part of any persons owning land along the line of the street to be improved; but they confer such authority upon the common council of the city, as empowers that body to initiate and consummate the enterprise at its own instance and of its own motion.

Before that can be done, the common council is required to cause the street to be surveyed, and permanent monuments to be placed showing the lines thereof, and a map to be made and tiled. After that has been accomplished, then the council is empowered to declare, by resolution, its intention to take and appropriate the property required for the proposed improvement. And nothing whatever beyond that is required to be done, either on the part of the council or on the part of the owners of the property, or any of them, to entitle that body legally to make that declaration. When the resolution has been adopted declaring it to be the purpose of the council to take the land, the subsequent steps in the proceedings are fully and clearly provided by which the title is to be acquired and the work of laying out, opening, or widening the street fully and completely performed. (Laws of 1857, vol., 1, 135–139). And the expense attending it is not rendered exclusively local, as that which may properly be deemed a local im. provement is, but the commissioners appointed for its assessment, are required to direct such part of it to be assessed upon the city at large, and such part locally, as they shåll deem best. (Id., 137, § 4). And that course was pursued in the present instance, for the larger portion of the expense was shown to have been assessed upon the city. The objection that the work could not lawfully be undertaken

Granger agt. City of Syracuse.

without the application or assent of the majority of the persons owning property on the line of the street must therefore be overruled.

The case shows that the portion of the plaintiff's premises, which the common council resolved to appropriate to the opening and widening of this street, was described upon the map previously made and filed, according to the requirements of this portion of the charter of the city. And that notice was given to him of the resolution adopted by that body, declaring its purpose to take and appropriate that property to the widening of the street. And of its intention to apply to the county court for the appointment of commissioners to assess the value of the land to be taken, and the advantages that would result to him from the use and appropriation of it to the purpose for which it was to be taken.

On the day mentioned in the resolution, the application was made and the commissioners were appointed by the county court. These commissioners examined the premises, and afterwards made their report to the common council. In this report it is stated that the several parties whose property was taken attended them. And if they did, the plaintiff must have been among the number; if he was not the statement was untrue, and that should not be assumed in a collateral action, without any evidence tending to establish that conclusion. By the resolution served upon the plaintiff, he was so far made a party to the proceedings themselves, as to render them prima facie, if not conclusive, evidence against him, particularly when they are drawn in question in an independent action on his part.

These commissioners awarded damages in three different instances, for property required to be appropriated to the improvement of the street. And the persons to whom such damages were awarded, are either named or described in such a manner as to leave no doubt concerning their identity. As to the other property taken for the improve

Granger agt. City of Syracuse.

ment, they reported generally that, “the owners thereof are fully compensated for the benefits to the adjoining land owned by them, respectively,” and this is objected to by the plaintiff, as being so substantially defective as not to confer upon the defendant any right to take and appropriate his property.

By taking the report altogether, it does appear that they not only intended to, but that they also did directly, adjudicate upon the plaintiffs' rights to damages for the land proposed to be taken from him for the purpose of widening the street. For the general statement contained in their report, which has already been mentioned, shows that they deemed all the persons not previously named or described by them, to be so far benefited by the improvement as to be fully compensated for the damages sustained by them arising out of the taking of their land. And the plaintiff was very clearly included in that statement. This award was warranted in substance by the statute, under which the commissioners proceeded, for that empowered them to deduct the benefits from the damages. (Laws of 1857, Chap., 136, 92). And it has been settled that the owner's right to compensation which the constitution has carefully secured, may be satisfied in that way. (Griffin agt. Mayor &c., of Brooklyn, 4 Com., 419, 435, 436).

It was not essential to the security of the plaintiff's right to compensation that the amount of it should have been specified in money, as long as it was found by the commissioners to be precisely equalled by the benefits secured to him. That they were not required to do by the statute. For it required them to award to him such damages, and such only as in their opinion should compensate him for the land taken from him, after deducting the benefits of the adjoining land owned by him. They were not required to state the damages and benefits in money, but only the excess of damages remaining in the plaintiff's favor, after deducting the value of the benefits accruing from the im

Granger agt. City of Syracuse,

provements to his adjoining lands. It was only the damages remaining after the deduction that the commissioners were required to award, and as there were no such damages, of course none could be awarded by them. This is the plain reading of the statute, and in this particular it does not appear to be in conflict with any provision in the constitution.

It was not indispensable to the validity of the action of the commissioners, that the plaintiff should be named in the report made by them. All that was required was that it should appear that his right to compensation had been considered and adjudicated by the commissioners. And that was made to appear, for the general statement included the property of all the owners taken for the street, except that of three specific instances, particularly and previously designated.

It sometimes becomes necessary to take the property of unknown owners for the use of the public. And if the validity of the proceedings depended upon their being accurately named, that could never be lawfully done, which might prove the source of public inconvenience and mischief. In those cases it would be utterly impracticable to comply, with such a requirements, if the constitution or the statute had made it. If the naming of the owner whose lands are to be taken for a public improvement, were material or essential to the preservation and maintenance of the rights secured to him by the constitution, then that would have to be done, no matter how inconvenient it might prove to be, before his property could be lawfully applied to public use. But that is not the case, for the constitution requires only that the owner shall be justly compensated for his property, when it may be taken for that purpose. And that can be done as well by describing or referring to him, as it can by naming him; where he may be clearly referred to or described, he is as completely ascertained and identified as though his name in fact were mentioned. And in such a case no difficulty could be ex

« PreviousContinue »