Loomis, J.
The first question made in this case is, whether, under the charter of the city of Meriden, damages assessed by the city authorities in favor of a party whose land is taken for a city street, can be reduced upon the party’s application to the Superior Court for relief. In the present case the plaintiff’s damages for land taken were assessed by the board of compensation at three hundred dollars. Upon his application for relief the committee to whom the case was referred by the Superior Court, found, subject to a certain legal question to be hereafter considered, “that the damages and benefits to the plaintiff by the laying out of the street were equal.”
The plaintiff contends that the Superior Court had no power to reduce the amount of damages awarded him by the [426]*426board of compensation; that it could only raise them, or leave them to stand as they were. In support of this claim the plaintiff relies, first, on the designation which the charter gives to the proceeding—that of an “ application for relief,” which he contends makes it differ from an ordinary appeal from such assessments; and, second, on a later provision of the same section of the charter, which provides that “ if said damages are increased or said assessment of benefits is reduced,” the costs shall be paid by the city, but “if the damages are not increased or assessment for benefits not reduced,” the costs shall be paid by the applicant; there being no reference to, and apparently no consideration of, the case of a reduction of the damages awarded or an increase of the assessment for benefits.
This argument is not without a considerable show of reason, but we are satisfied that it ought not to prevail. The section in question in explicit terms gives the Superior Court power, on such an application, “ to re-assess said damages or benefits, and give judgment accordingly.” This is the only clause of the section which relates to the power given to the court in the matter, and it is precisely this power which we are endeavoring to ascertain. Of course the whole section is to be taken together in determining the meaning of any particular clause in it, and especially its meaning as a whole; but we think this clause, which expressly states what is the power and duty of the court in the matter, is the predominating one in determining the meaning of the whole. The court in this case has done only.the precise thing which the charter in express terms gives it power to do.
But if we were left in serious doubt by this section of the charter, we should find aid in interpreting it from the charters of the other cities of the state. The universal rule in giving power to cities to lay out streets and* assess the damages and benefits therefor, is to provide for some mode of review of the action of the city authorities in making such assessments. The proceeding in most cases is called an appeal, sometimes a complaint, in two cases an application for a re-estimate of damages and benefits, in a single other [427]*427case, as here, an application for relief; but in every case express power is given to the tribunal before which the case is carried to “re-assess” the damages and benefits; while in nearly every case there is the same provision as here with regard to the allowance of costs against the city or the applicant, according as the damages are increased or not, or the benefits reduced or not. Now it can not be that the legislature intended a totally different rule of procedure in the two cases where the proceeding is called “ an application for relief,” from that which is to be followed in the others. It is in every case in effect an appeal from a lower tribunal to a higher one, and must have the ordinary incident of an appeal, in its carrying up the subject of appeal for a de novo consideration and judgment, unaffected in any manner by the adjudication below.
This is the only reasonable view of the matter. A rule that should limit the higher tribunal in the exercise of its judgment would work in many cases very inconveniently. Suppose several parties, perhaps all the parties interested, appeal from' assessments of damages in their favor as too low, and from assessments of benefits against them as too high. The total of assessments is fixed, as a general rule, with reference to the total cost of the improvement, which includes the damages to be paid. Now if all appeal, or a large number, it requires a re-adjustment of the assessments between the different parties. An addition to the damages of all would require a larger assessment of benefits; while if the total is not increased, the increase of damages to some would require the reducing of the damages of others; as would also the reducing of the assessment of benefits in favor of some require an increase of the assessment against others. This re-adjustment of the assessments could not be made if the tribunal had no power to reduce an award of damages or increase an assessment for benefits. And yet this power to re-adjust the assessments is one that is expressly given by some of the city charters in connection with the power given on appeals to re-assess, and is certainly to be regarded as given by implication in all cases where there are [428]*428several appeals from assessments made in the same matter, pending before the court at the same time.
We entertain no doubt of the power of the Superior Court in the present case to adjudge the damage sustained by the plaintiff to.be balanced by the benefits received, although the city authorities had awarded him three hundred dollars as damages above his benefits.
The next question made in the case is, whether the acceptance in fact of a part of the new street by the public constitutes in law an acceptance of the whole street as laid out and opened. Upon this point we are unable to entertain a doubt. The acceptance of a street by the public is always one of fact, the law merely contributing its definition of the term. While the acceptance covers what is incidental to the street, there is yet properly no legally constructive acceptance, unless in a peculiar case which we will hereinafter consider. Thus the actual use of a street laid out eighty feet wide would be an acceptance of the street as of that width, while the same amount of use of a street laid out only forty feet wide, would be an acceptance of it as only of that width. In each of these cases the public by its use has accepted the street, but has accepted it as it was dedicated or as the use found it. But this is not so much by operation of law, as by operation of the actual use as a fact. There is no room for such an operation of the use upon a portion of an opened street that extends entirely beyond all actual use on the part of the public. It will be seen at once upon a consideration of the matter that any such rule would be one very difficult of practical application. Thus, a street is laid out by private land-owners in the suburbs of a growing city extending a mile out into the country. We will suppose it to be cleared of trees and fences, and perhaps marked by visible monuments, so as to have been opened for a street, as in the present case, but also, as here, not worked. Now the occupancy of the street by houses, and the use of it by the public in connection with the houses, would begin at the end next the city and extend very gradually outward, making perhaps a very clear acceptance of the street for a quarter of a mile, [429]*429while no use whatever is made of the street beyond.
Free access — add to your briefcase to read the full text and ask questions with AI
Loomis, J.
The first question made in this case is, whether, under the charter of the city of Meriden, damages assessed by the city authorities in favor of a party whose land is taken for a city street, can be reduced upon the party’s application to the Superior Court for relief. In the present case the plaintiff’s damages for land taken were assessed by the board of compensation at three hundred dollars. Upon his application for relief the committee to whom the case was referred by the Superior Court, found, subject to a certain legal question to be hereafter considered, “that the damages and benefits to the plaintiff by the laying out of the street were equal.”
The plaintiff contends that the Superior Court had no power to reduce the amount of damages awarded him by the [426]*426board of compensation; that it could only raise them, or leave them to stand as they were. In support of this claim the plaintiff relies, first, on the designation which the charter gives to the proceeding—that of an “ application for relief,” which he contends makes it differ from an ordinary appeal from such assessments; and, second, on a later provision of the same section of the charter, which provides that “ if said damages are increased or said assessment of benefits is reduced,” the costs shall be paid by the city, but “if the damages are not increased or assessment for benefits not reduced,” the costs shall be paid by the applicant; there being no reference to, and apparently no consideration of, the case of a reduction of the damages awarded or an increase of the assessment for benefits.
This argument is not without a considerable show of reason, but we are satisfied that it ought not to prevail. The section in question in explicit terms gives the Superior Court power, on such an application, “ to re-assess said damages or benefits, and give judgment accordingly.” This is the only clause of the section which relates to the power given to the court in the matter, and it is precisely this power which we are endeavoring to ascertain. Of course the whole section is to be taken together in determining the meaning of any particular clause in it, and especially its meaning as a whole; but we think this clause, which expressly states what is the power and duty of the court in the matter, is the predominating one in determining the meaning of the whole. The court in this case has done only.the precise thing which the charter in express terms gives it power to do.
But if we were left in serious doubt by this section of the charter, we should find aid in interpreting it from the charters of the other cities of the state. The universal rule in giving power to cities to lay out streets and* assess the damages and benefits therefor, is to provide for some mode of review of the action of the city authorities in making such assessments. The proceeding in most cases is called an appeal, sometimes a complaint, in two cases an application for a re-estimate of damages and benefits, in a single other [427]*427case, as here, an application for relief; but in every case express power is given to the tribunal before which the case is carried to “re-assess” the damages and benefits; while in nearly every case there is the same provision as here with regard to the allowance of costs against the city or the applicant, according as the damages are increased or not, or the benefits reduced or not. Now it can not be that the legislature intended a totally different rule of procedure in the two cases where the proceeding is called “ an application for relief,” from that which is to be followed in the others. It is in every case in effect an appeal from a lower tribunal to a higher one, and must have the ordinary incident of an appeal, in its carrying up the subject of appeal for a de novo consideration and judgment, unaffected in any manner by the adjudication below.
This is the only reasonable view of the matter. A rule that should limit the higher tribunal in the exercise of its judgment would work in many cases very inconveniently. Suppose several parties, perhaps all the parties interested, appeal from' assessments of damages in their favor as too low, and from assessments of benefits against them as too high. The total of assessments is fixed, as a general rule, with reference to the total cost of the improvement, which includes the damages to be paid. Now if all appeal, or a large number, it requires a re-adjustment of the assessments between the different parties. An addition to the damages of all would require a larger assessment of benefits; while if the total is not increased, the increase of damages to some would require the reducing of the damages of others; as would also the reducing of the assessment of benefits in favor of some require an increase of the assessment against others. This re-adjustment of the assessments could not be made if the tribunal had no power to reduce an award of damages or increase an assessment for benefits. And yet this power to re-adjust the assessments is one that is expressly given by some of the city charters in connection with the power given on appeals to re-assess, and is certainly to be regarded as given by implication in all cases where there are [428]*428several appeals from assessments made in the same matter, pending before the court at the same time.
We entertain no doubt of the power of the Superior Court in the present case to adjudge the damage sustained by the plaintiff to.be balanced by the benefits received, although the city authorities had awarded him three hundred dollars as damages above his benefits.
The next question made in the case is, whether the acceptance in fact of a part of the new street by the public constitutes in law an acceptance of the whole street as laid out and opened. Upon this point we are unable to entertain a doubt. The acceptance of a street by the public is always one of fact, the law merely contributing its definition of the term. While the acceptance covers what is incidental to the street, there is yet properly no legally constructive acceptance, unless in a peculiar case which we will hereinafter consider. Thus the actual use of a street laid out eighty feet wide would be an acceptance of the street as of that width, while the same amount of use of a street laid out only forty feet wide, would be an acceptance of it as only of that width. In each of these cases the public by its use has accepted the street, but has accepted it as it was dedicated or as the use found it. But this is not so much by operation of law, as by operation of the actual use as a fact. There is no room for such an operation of the use upon a portion of an opened street that extends entirely beyond all actual use on the part of the public. It will be seen at once upon a consideration of the matter that any such rule would be one very difficult of practical application. Thus, a street is laid out by private land-owners in the suburbs of a growing city extending a mile out into the country. We will suppose it to be cleared of trees and fences, and perhaps marked by visible monuments, so as to have been opened for a street, as in the present case, but also, as here, not worked. Now the occupancy of the street by houses, and the use of it by the public in connection with the houses, would begin at the end next the city and extend very gradually outward, making perhaps a very clear acceptance of the street for a quarter of a mile, [429]*429while no use whatever is made of the street beyond. Can it be that this use so clearly limited and defined in extent can constitute a use, and by such constructive use an acceptance, of the part of the new street that is most remote from the city? If it could operate to make an acceptance of that remote part of the street, why not of a still remoter part, perhaps a mile further out, if the street had been laid out for two miles instead of one ? And if it could not operate to accept a part of the street so remote, as we think it very clear that it could not, where shall the line be drawn ? We see that we encounter a practical difficulty that is very serious. There is only one rule to apply in such a case, and that is the rule of actual use. Where the actual use stops there the acceptance stops, with only the qualification before suggested, that such use will take in whatever may be regarded as properly incident to it. Under this rule the use may cover in some cases a little more length of road than has been literally driven or passed over by the public. Thus, the remotest house on the new street may have been constantly traveled up to and from, by persons and vehicles, such travel in fact extending only to the gate in front of the house, while the road as opened may extend two or three rods beyond. In such a case the road may be regarded as accepted for these few rods, but not by operation of law but only as incidental to the actual use.
In the case of Town of Derby v. Alling, 40 Conn., 410, the land for a number of village streets was conveyed by the proprietors of a tract of land to the town of Derby, to be used “for public streets and highways only,” with a designation of them upon a map referred to in the deed. The town had previously passed a vote declaring these streets highways on condition that they should thus be conveyed to the town. This court held that the town thus became a trustee of the land for the purpose contemplated, and that the grant operated as a dedication of the streets to the public, but that, notwithstanding the formal acceptance of the grant by the town, it was necessary that there should also be an acceptance by the public. It is however held that the acceptance [430]*430by the public, by its actual use of a portion of a street, was to be regarded as an acceptance of the street in its entirety, applying to the case the doctrine of a constructive acceptance. The court however put this expressly and wholly upon the ground that the street had been conveyed to the town as a whole, and was held by the town for the public acceptance as a whole, so that that acceptance was to be regarded as an acceptance not of a part but of the whole; such acceptance of the whole being a carrying into effect of the manifest intent of the grantors and of those for whose benefit the grant was made. It was also an incident of that case that the entire street as to which the question arose, was a part of a net work of streets, and was connected by the portion not used with a cross street to which it furnished access, the non-use being wholly owing to the steepness of a hill at that point, which made it necessary that this part of the street should be graded before it could be used. The court held the dedication by the grant to be irrevocable, making it entirely unlike the case of an ordinary dedication, which is revocable until the public have accepted it, and to the full length of which on paper, or in the intent of the party dedicating it, the actual use and so acceptance by the public has no reference. If a highway is fenced and worked by a party dedicating it to the public, and then by a fence across it the public are debarred from the use of a considerable portion of it, it would not be contended that the use of the open portion would constitute an acceptance of the part from which the public was debarred; and yet the non-use by the public of tire part from which it was excluded would not be so decisive evidence that the public do not want it, and so that it is not of common convenience and necessity, as would the same non-use if the public was not thus excluded, as in this case the non-use would result from the actual preference of the public in the matter and not from compulsion.
While therefore we would not hold that there may not be a constructive acceptance of one portion of a highway by an actual use and acceptance of another portion, yet we think such constructive acceptance can exist only in a peculiar case [431]*431like that in Town of Derby v. Alling, where by reason of the formal character of the proceedings attending the dedication and designation of the streets and acceptance by the town, and the fact that the street as to which the question arises is a part of a net work of streets, a special and unusual effect is to be given to such actual use of a portion of the streets as is made by the public.
In Guthrie v. Town of New Haven, 31 Conn.,, 308, the court consider the general principles governing the matter of the dedication and acceptance of highways, and say (p. 321,) that “an acceptance by the public is presumed where the highway is shown to be-of common convenience and necessity and therefore beneficial to them,” and that “ the principal evidence of its beneficial character will be the actual use of it as a highway, without objection, by those who have occasion to use it for that purpose.” The same principle is laid down in Green v. Town of Canaan, 29 Conn., 157. And in the recent case of N. York, N. Haven & Hartford R. R. Co. v. City of Hew Haven, 46 Conn., 257, the court held that one of several streets embraced in an original dedication and quitclaimed by the owner of the land to a trustee for the city and afterwards by the trustee to the city, with a reference in the deeds to a map on which the streets were laid down, did not become a public highway without an actual use by the public, even though the other streets on the map were accepted' by such use—and nothwithstanding a vote of the city to accept the conveyance of the streets.
We can not entertain any doubt that the actual use and acceptance by the public of the part of the highway in question can not be regarded as in law an acceptance of the part not .used by the public.
There is.no error in the judgment complained of.
In this opinion the other judges concurred.