Page images

Granger agt. City of Syracuse.

perienced by him in obtaining the compensation designed for and awarded to him. In the present case the portion of the plaintiff's premises required for the widening of this street was described upon the map and referred to in the resolution. And in addition to that it must have been designated and shown upon the grounds by the permanent monuments the surveyor was required to place upon the lines of the street. He also appeared before the commissoners when they were considering his right to compensation. And when their report was made stating that as to all the land taken for the widening of the street, except the three instances specially mentioned, the benefits to the adjoining lands of the owners equalled the damages arising out of the appropriation of the land to be taken, he must have known that his case was included in that general statement. For he was as clearly designated and referred to by what was said in the report as though his case had been specially mentioned in connection with the insertion of his name. And within the principle already mentioned, which has previous to this time, in substance, received the approval of this court, that was sufficient to constitute a compliance with the provisions of the constitution and of the charter of the city of Syracuse. (Buell agt. Trustees, &c., 3 Com., 197). For the constitution neither expressly nor by necessary implication requires the owner to be named in order to render the proceedings valid, which may have been instituted for the purpose of taking his land.

The constitution merely requires that the person whose property may be taken for a public use, shall be compensated for it, and that the compensation shall be ascertained by a jury, or commissioners appointed by a court of record. This can be as completely accomplished by describing, as it can be by naming the person to be compensated. And that in effect was the rule adopted in Buell agt. Trustees of Lockport, (sapra). And it was also very distinctly maintained in Monagle agt. County Commissioners (8 Cush., 360);

Granger agt. City of Syracuse.

Inhabitants of Reading agt. County Commissioners (7 Gray, 109); Hildreth agt. City of Lowell, (11 Gray, 345, 352).

The charter of the city of Syracuse certainly does not require any more than that, where no award is to be made for damages exceeding the benefits resulting from the improvement to be made to the owners of the adjoining lands. Where the damages are found by the commissioners to exceed the benefits, there, and there alone, so far as they do exceed them, they are to be awarded to the owner. And even that could be done by clearly and fully describing him.

The omission to name the plaintiff in the report of the commissioners, could not be the source of any embarrassment in the assessment of the expenses of the improvement, and the damages payable to the persons having awards in their favor. For the duty of the commissioners making that assessment was confined to a simple estirnate of the expenses of the work, and, after adding that to the amount of the awards, assessing it upon the property, legally bound to pay it, according to the direction given them by the charter of the city. And that they could do as well withɔut the names of the owners, whose lands were to be appropriated for the street, as they could if every name had been fully and accurately stated in the commissioner's report. In discharging their duty, they could have no occasion for considering whose lands had been taken, or how they were to be compensated for them, beyond the awards actually made in specific sums of money by the commissioners. For the latter only were to be taken into consideration by them. And that was to be done, not for the purpose of reviewing the action of the commissioners, but merely for the purpose of ascertaining the aggregate amount to be assessed, as the costs of improvement.

As there was no such omission of duty on the part of the commissioners as rendered their proceedings invalid, it follows that the defendant had the legal right to take and appropriate the land in controversy.

Granger agt. City of Syracuse.

The judgment should therefore be affirmed, with costs.

Hunt, Ch. J., (dissenting).—The difficulty in this case arises from an attempt on the part of the commissioners appointed to award damages for the property proposed to be taken, to state results rather than facts.

They awarded to the three persons named, damages in the aggregate of $8,500, and said that the owners of the other property proposed to be taken should be awarded no damages, because the benefit to their remaining property afforded them a sufficient compensation.

The map describing the property intended to be taken is not furnished to us, and we do not know the number of persons thus affected, or the extent of the property.

That there were several such owners appears from the statement quoted, and that the plaintiff was one of them is not denied in the pleadings, and was not controverted on the trial.

The commissioners should have ascertained the entire value of the property appropriated by the map for the proposed improvement, and have stated the amount of damages to each lot, with the owner's name, and gave the aggregate as the damages necessary to be paid.

They should then have found and recited that the adjoining property owned by Mr. Granger would be benefited to a certain amount to be specified, and that this benefit compensated for the damages before awarded, and the same as to the other owners whose property was thus taken. By omitting to give the facts, they involved the matter in serious embarrassment.

Mr. Leach, Mr. Winton and Mr. Judson were the commissioners who made the award of damages to which I have referred.

The assessment of these damages upon the property benefited by the improvement was made by another commission, consisting of Mr. Williams, Mr. Smith and Mr.

Granger agt. City of Syracuse.

Porter. We see at once the error of the first proceeding and the force of the objection made by the plaintiff upon the trial, that there was no award specifying the damages sustained by the owners whose land was proposed to be taken, and no statement of the amount of benefit to the adjoining land.

How much damage had Mr. Granger sustained by the taking of that portion of his property, which was to be included in the proposed improvement ?

Unless the commissioners know this fact, I see not how they could assess the amount upon the property benefited. The report is silent upon the subject of this amount.

The commissioners had no possible legal means of obtaining this knowledge. They assessed upon Mr. Granger's remaining property, two hundred dollars, as the sum to be paid by him. This was necessarily an adjudication that his benefit was two hundred dollars more than the value of the property taken. This was a judgment that this last commission bad no right to make. They had no authority to act upon the subject. Their only duty was to make a distribution of the amount of damage, which should have been previously ascertained by the prior commissioners, Mr. Winton, Mr. Leach and Mr. Judson. The award shows merely, that the plaintiffwas “fully compensated by benefit” to the adjoining lands. The report of the last commission finds not only that, but that he has received $200 benefit in addition. It was impossible that the plaintiff should be properly charged with this sum, unless those charging it knew how much compensation he was entitled to for the property taken. (Laws of 1857, pp., 135–137, $$ 1-4).

I consider this proceeding as fatally deíective, and that it afforded no protection to the city of Syracuse or its agents.

The defendant insists that if the court are with the plaintiff on the merits of the case, that the action for an injunction to restain the defendant from opening the street, will not be sustained. The defendant, however, expressly con

Granger agt. City of Syracuse.

cedes that such action will lie where the injury threatened is irreparable, where it is necessary to prevent multiplicity of suits, or where the proceedings create a legal cloud upon the title. The main object of the action is to restrain the performance of the work, and the injury of his property. It is different from the case of a bill to restain the collection of a tax.

Concurring substantially in the legal rule thus laid down, the plaintiff claims that the present case is within the rules of equity justifying a preventive remedy, and that the injury to be sustained will be serious and irreparable.

In its strict etymological signification there can scarcely be an irreparable injury to property, that is one which cannot by a sufficient amount of money, be restored, amended, or compensated for. The legal understanding of the term gives a more extended signification. Thus the loss of trade, the permanent ruin of a house, even the darkening of its windows, by which its daily enjoyment is rendered less available, fall within the idea. So the diversion of streams, the setting back of water-courses, the establisment of new ferries or turnpikes, the improper use of a public square, the disturbance of a burial-ground, are all deemed to be proper subjects of perpetual injunction.

So where a trespasser digs into and works a mine, to the injury of the owner; where timber is attempted to be cut by a trespasser in collusion with a tenant; or where there being a disputed boundary, one of the claimants is about to cut down ornamental trees on the disputed territory; and in all cases of timber, coals, ores, and quarries, where the party is a trespasser, or where he exceeds his rights, the injury is held to be within the description of an irreparable injury. (2 Story Eq. Jur., $$ 926–929: Mace agt. Trustees of Newburgh, 15 How., 161).

In the present case the premises are a city house and lot, which have been occupied by him for thirty-five years past. The west wall of his house is nine feet from the west line of

« PreviousContinue »