Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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should be made. After the report of the commissioners esti-
mating the expense of the improvement and the damages of
the landowners had been made and confirmed, the same
commissioners were then to proceed to make the assessment,
and in making their assessment and report, the provisions of
the Charter Acts are to govern when not inconsistent with
the act of 1868. The form of the report, including the stating
of balances, is governed by the Charter Acts, and the same
policy of reducing awards by assessments is b)'' force of the
seventh section applied to proceedings under the act ot 1868.
It is insisted by the counsel for the plaintiflf, and it is conceded
by the counsel for the city of Brooklyn, that under the
Improvement Acts an assessment is not a personal charge
against the owner of the land, and is enforceable only by a
proceeding in rent against the land assessed. The exemption
of the owner of land from personal liability for an assessment
does not, however, conflict with the policy of charging
against an award an assessment against a residue. An
assessment for benefit proceeds on the assumption that the
land assessed is increased in value by the improvement, and
the extinguishment of the award in whole or in part by the
assessment relieves the land assessed from the burden of the
assessment. In theory the cancelled assessment is the exact
equivalent of the amount by which the award is reduced.
But we think the court below erred in aggregating the bal-
ances of awards and the balances of assessments, and ofiFset-
tmg the one aggregate against the other. The lots were sep-
arately valued and separately assessed. In cases where the
assessment exceeds the award, the owner may prefer that the
land should be sold for the assessment rather than pay the
lien. This, we think, he has the right to do. The statute only
contemplates the reduction of an award by an assessment
when both relate to the same lot, and the balance is to be
ascertained and struck by the commissioners and embodied

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in their report. The plaintiff was not personally bound to
pay the assessments, and no general right of set-off is given
by the act, and in the absence of a statutory provision we
perceive no equity upon which such right can rest. See
Hatch V. Mayor, etc., 82 N. Y. 436.

The constitutional objection is based upon the claim that
the authority given to the commissioners of as- samk hel©
sessment by the act of 1868, to reduce the award pJ^tiok.
for the land taken, by the assessment for benefit on the
residue of the same lot or parcel, is not Just compensation
within the constitutional requirement. It is not claimed that
actual benefit to a residue of land owned by a person whose
land has been taken in part for a local improvement may not,
if the legislature so direct, be set off against the value of the
land taken, and the money payment limited to the balance of
the award remaining after such application. This course
has been sanctioned by a uniform course of legislative and
judicial precedent, commencing at an early period. By the
Street Opening Act relating to the city of New York, re-
enacted in the Revised Laws of 181 3 (2 R. L. 408) it was pro-
vided (§ 178) that the commissioners of estimate and assess-
ment shall proceed to make a just and equitable assessment
of the loss or damage to any person by reason of the taking
of land, over and above the benefit or advantage, or of the
benefit and advantage over and above the loss and damage,
and that the commissioners " should estimate and report the
excess and surplus only of the said loss and damage over and
above the value of said benefit and advantage, as and for the
compensation and recompense to such owner or owners for
his loss or damage, etc., and for relinquishing the said lands,"
etc. The validity of the mode of compensation provided by
this act was considered in the case of Livingston v. Mayor,
etc., 8 Wend. 85, and the decision in that case has been fre-
quently approved. People v. Mayor, etc., 4 N. Y. 435 ;
Betts V. Williamsburg, 15 Barb. 255 ; L. L R. R. Co. v. Ben-
nett, 10 Hun, 91. The principle of the New York act has
been incorporated into very many of the acts subsequently
passed authorizing the laying out and opening of streets in
cities and villages. But the particular point of objection now
made is that the statute of 1868 does not limit the reduction
of the award by the actual estimated benefit resulting from

9 Cor. Gas. — 26

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the improvement to the lands of the owner other than those
taken, but that under the scheme of the statute the assessment
for benefit may exceed the actual, intrinsic benefit to the
land assessed, and it is claimed that a law permitting an award
to be reduced by the deduction of such arbritrary sum, not
measured by actual benefit, does not provide just compensa-
tion within the purview of the Constitution. The facts upon
which the argument proceeds may be briefly stated. The
act requires the commissioners of Prospect park, before any
assessment is made, to fix a district of assessment, beyond
which the act declares the assessment shall not extend. (§ 5.)
The whole expense of the improvement is to be estimated by
the commissioners of estimate and assessment, including the
damage to the landowners. (§ 16.) When this estimate is
made and confirmed, the commissioners of estimate and
assessment are then required to assess the amount so ascer-
tained upon the lands embrafced in the district of assessment
which they deem benefited by the improvement, and as th«y
shall deem just and equitable. (Id.) The argument is that
under this plan the whole expense must be assessed upon the
lands embraced in the assessment district fixed by the park
commissioners, although the aggregate benefit to such lands
from the improvement may not, in fact, or in the judgment of
the commissioners of assessment, equal the aggregate expense;
the only duty resting upon the commissioners being to make
the assessment relatively equal and just as between the dif-
ferent parcels in the assessment district. So, as is claimed, it
may result that the assessment on each parcel may exceed
the actual benefit thereto. It is insisted that the reduction
of an award by applying thereon an assessment not measured
by actual benefit is not just compensation.

We think the argument fails in omitting to separate the
two powers exercised by the legislature in framing the act of
1868, viz., the power of taxation, and the right of eminent
domain. The constitutional requirement that just compensa-
tion shall be made for lands taken for public use must be ab-
solutely performed, and a mere colorable compliance will not
satisfy the constitutional guaranty. The right to compensa-
tion is the right of the citizen whose land is taken, which the
legislature can neither ignore nor deny. The power of taxa-
tion on the other hand is vested in the legislature and is prac-

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ticallj absolute, except as restrained by constitutional limita-
tions. The power of taxation being legislative, all the inci-
dents are within the control of the legislature. The purposes
for which a tax shall be levied ; the extent of taxation ; the
apportionment of the tax ; upon what property or class of per-
sons the tax shall operate ; whether the tax shall be general
or limited to a particular locality, and in the latter case the
fixing of a district of assessment ; the method of collection,
and whether the tax shall be a charge upon both person and
property, or only on the land, are matters within the discre-
tion of the legislature and in respect to which its determina-
tion is final. Livingston v. Mayor, etc., supra ; People v.
Mayor, etc., 4 N. Y. 419 ; Thomas v, Leland, 24 Wend. 65 ;
Town of Guilford v. Sup'rs of Chenango, 13 N. Y. 143 ; In re
Church, 92 Id. i.

There is no constitutional guaranty that taxation shall be
just and equal, although a law plainly departing from the
principle of equality in the distribution of public burdens
would be justly obnoxious, as contrary to natural equity and
as practical confiscation ; but the remedy must ordinarily be
found in an appeal to the justness of the legislature. The
principle of local assessments for public municipal improve-
ments has been recognized and applied during the whole his-
tory of the State, although its absolute justice has been some-
times questioned. The legislature may itself fix a district of
assessment, or the power may be delegated by the supreme
legislative body to the authorities of subordinate political and
municipal divisions, or other official agencies, as may also the
incidents of the power, such as the apportionment and distri-
bution of the tax, as between the persons and property upon
which it is laid. The learned counsel for the intervenors is
compelled to admit that the legislature may distribute the
burden of public improvements on its own notions of policy,
its own sense of justice, and its own assumptions of benefit.

The imposition of local assessments for benefits is an exer-
cise of the taxing power (People v. Brooklyn, supra; Matter
of Van Antwerp, 56 N. Y. 261 ; Litchfield v. Vernon, 41 Id.
123), and it is clear that the legislature* may, in its discretion,
make assessments a personal charge against the owners of the
land assessed, and impose upon them the duty of payment.
The assessment district, under the act of 1868, was fixed by

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the park commissioners, under its authority ; and although the
act does not in terms require them to include therein all the
property which, in their judgment, would be specially bene-
fited by the improvement, this is the fair intendment. In ex-
ecuting this authority the commissioners may have erred in
judgment, as the legislature might have done if it had itself
defined the district of assessment. Bui the judgment of the
commissioners was final, unless it was subject to revision in a
direct proceeding in review, as to which it is not necessary to
inquire. The assessments imposed upon the lands of the
plaintiff's grantor, was, as has been said, a tax, and repre-
sented the proportion of the aggregate sum which, in the
judgment of the commissioners exercising by delegation the
power to distribute the tax, should be charged upon the sev-
eral parcels as their respective contributions to the aggregate
expense. Assuming that the charge exceeded the benefit, it
was nevertheless made under the authority and direction of
the legislature in the exercise of an undoubted legislative
power, and it cannot be invalidated by proof that the charge
was unjust or unequal, or even arbitrary. Bringing together,
then, the two proceedings under the act of 1868, we are of
opinion that there is no constitutional objection to a legisla-
tive direction setting off against an award made to an individ-
ual for lands taken for public use an assessment for benefit
against his other lands made in the same proceeding. The
act provides in the first instance, for the ascertainment,
through constitutional commissioners, of the full value of the
land taken. It next provides for the assessment by the same
commissioners, acting as representatives of the taxing power,
of the whole expense of the improvement upon a limited dis-
trict, defined by the commissioners of Prospect Park. There
can be no doubt that the assessment, when made, became a
valid charge on the lands assessed. It was competent for the
legislature to have made the owners personally liable for the
assessment. It did not adopt this general policy. But in re-
spect to the owners of lands taken, and also of lands assessed,
it declared, in substaiy^e, that the claim for compensation, as-
certained in the mode defined by the Constitution, should be
satisfied in whole or pro tanto by the satisfaction, in the man-
ner pointed out by the statute, of a valid and legal charge for
benefit imposed upon his other lands. This, we think, was

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just compensation within the principle of Livingston v.
Mayor, etc., supra^ and the cases following it. If there is
any departure irom sound principle in the method of adjust-
ing compensation provided in the act of 1868, it is sanctioned
by a long line of legislative and judicial precedents which the
court is not at liberty to disregard.

There are no other questions which require particular
notice. The result is that the judgment should be reversed
for the error of the court below in aggregating the balances
and setting off the one aggregate against the other. The sub-
tractions in the copy of the tabulated report, as printed, seem
to be inaccurate. Upon a new trial the parties will have an
opportunity to correct any amendable error in the computa-

All concur, except Miller and Danforth, JJ., not voting.

Judgment reversed.



City of Cleveland.

{Advance Case, Ohio. April 28, 1885.)

Under the Acts of 1872 and 1876, 69 Ohio L. 138; 73 Ohio L. 107;
3 R. S. 616, 617, a viaduct 64 feet wide, with a level roadway, was con-
structed in Cleveland across the Cuyahoga River. On the south side of
Superior Street, between Water Street and the river, a distance of 768
feaet, the city condemned a strip of ground and the viaduct was con-
structed over that strip and over a part of Superior Street, about 37 feet
being over the strip opposite Cohen's premises, and the balance over the
street; so that, in effect, Superior Street, which was 93 feet wide, is re-
duced in width between Water Street and the river, and opposite Cohen's
premises its present width is 66 feet. The elevation of the roadway of
the viaduct above Superior Street gradually increases from Water Street
to the river, and opposite the premises of Cohen, which are on the north
side of Superior Street, midway between Water Street and the river, the
elevation is 45 feet ; and it is alleged that the viaduct diverts travel from
that part of Superior Street, impairs the light and air to Cohen's prem-
ises, causes noise and the jarring of his house day and night, and has im-
paired the value of his prof)erty and reduced its rental value.

Held: I. The viaduct is a lawful structure.

2. On proof of the alleged injury, Cohen is entitled to damages.

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3. Cohen is not owner of a lot " bounding or abutting upon the pro-
posed improvement," within the meaning of the Municipal Code, sec. 564 ;
R. S. sec. 2315, and hence it was not necessary for him to file a claim for
damages under that section.

Error to the District Court of Cuyahoga County.

G. E. &J. y. Herrick and W. 5. Collins for plain tiflF in error.

John F. Weh for defendant in error.

Okey, J. — Elias Cohen, on August 30, 1879, brought suit
Facts. in the Court of Common Pleas of Cuyahoga

County against the city of Cleveland for injuries to his
real estate, which it is alleged he sustained by reason of
the construction of a bridge, commonly called the viaduct,
across the Cuyahoga River. An answer and a reply were
filed, and on the trial testimony was offered to show that the
plaintiff was entitled to a verdict ; but it appearing that the
plaintiff had filed no claim for damages in accordance with
the Municipal Code, sec. 564, 66 Ohio L. 245 ; 75 Ohio L.
324; R. S. sec. 2315, the court, in effect, directed a verdict
against him, which was returned accordingly. Judgment
was rendered on the verdict, and the District Court having
affirmed the judgment, this petition in error was filed to re-
verse as well the judgment of the Court of Common Pleas
as that of the District Court.

The city of Cleveland, situated upon Lake Erie, is divided
by the Cuyahoga River, which runs north to the lake.
Superior Street, for more than sixty j'^ears one of the prin-
cipal thoroughfares of the place, extends westerly to the
river, crossing Water Street, which is parallel with the river,
and distant about 768 feet therefrom. Midway between
Water Street and the river the premises of Cohen are situ-
ated. His lot, fronting twenty-two and one half feet on the
street, has a depth of ninety feet, and his house is a three-
story brick with stone basement. The street at this point is
ninety-three feet wide. At the time the alleged grievance
was committed, Cohen was, and he continued to be, sole
owner of the premises, and in possession.

The viaduct is a magnificent structure, extending from
Water Street, above mentioned, to Pearl Street near its
junction with Dayton Street, on the other side of the river,
and its roadway is nearly level. Its width is sixty-four feet,

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and it is so constructed as to accommodate travel of every
sort. In order to construct this work, the city condemned a
strip of ground on the south side of Superior Street, extend-
ing from Water Street to the river, and the viaduct covers
that strip, to the width of thirty-seven feet opposite Cohen's
premises, and also covers part of Superior Street, such part
opposite Cohen's premises being twenty-seven feet in width
on the south side of the street. The elevation from the
roadway of the viaduct to the surface of Superior Street
gradually increases from Water Street to the river, and in
front of Cohen's property the elevation is forty-five feet

The viaduct was constructed in 1877 ^^d 1878, and the
authority for building it is found in the Act of 1872, 69 Ohio
L. 138 ; 3 R. S. 616, and the Act of 1876, 73 Ohio L. 107 ; 3
R. S. 617.

These acts are supplementary to the Municipal Code ; no
objection which has been urged against their validity in this
case is tenable ; and, in our judgment, those acts in connec-
tion with the Municipal Code contain ample power for the
erection of such structure. Hence, the viaduct cannot be,
in contemplation of law, a nuisance, but is a lawful structure ;
and there is no complaint that there was negligence, malice,
or bad faith which caused injury to the plaintiff.

But the right of Cohen to damages is not determined ad-
versely to him by these facts. He is not entitled to compen-
sation under the letter of the Constitution, article i, section
19, but may be entitled to such compensation in compensation
analogy to that provision. Injuries resulting from ^SlductT^* °^
the change of established grades in streets, though made
in accordance with the statute and without negligence or
malice, and other injuries of a kindred character, have been
held to afford ground for the recovery of damages against
municipal corporations. Rhodes v, Cleveland, 10 Ohio, 159;
McComb V, Akron, 15 Ohio, 479; s. c, sub nom, Kkton v.
McComb, 18 Ohio, 229; s. c, 51 Am. Dec. 453 ; Crawford v.
Del., 7 Ohio St. 459 ; Youngstown v. Moore, 30 Ohio St. 133 ;
Keating v. Cincinnati, 38 Ohio St. 141 ; and see Little Miami
R. R. Co. V. Naylor, 2 Ohio St. 235 ; Street R. R. Co. v. Cum-
minsville, 14 Ohio St. 523 ; Richard v, Cincinnati, 31 Ohio St.
506; Story V. N. Y. Elevated R. R. Co., 90 N. Y. 122.

This court has, however, constantly acknowledged that

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McComb V. Akron, and cases following it, is a departure
from the current of authority elsewhere ; and although these
cases have not found favor with the Judges delivering the
opinions in Radcliff v. Brooklyn, 4 N. Y. 95 ; s. c, 53 Am.
Dec. 357, 366 «. ; Hill V. Boston, 122 Mxiss. 344, 378; Alex-
ander V, Milwaukee, 16 Wis. 247, 256 ; Transportation Co. v.
Chicago, 99 U. S. 635 (XXV. Law. ed. 336), we are entirely
content with the doctrine, and would not change it if we

But the justice of the Ohio rule, the firmness with which
it has been adhered to for nearly half a century, and the
manner in which it is recognized and enforced in our statutes,
have established the doctrine as a rule of property, and it is
now too late to inquire whether McComb v, Akron was
properly decided. In other States, the same rule is, in part
or wholly, adopted by constitutional or statutory provision.

If we look alone to the allegations in the plaintiff's petition,
and the facts which the evidence tended to establish in his
favor, a far stronger ground of recovery was shown than in
either of the Ohio cases cited. We have seen that the road-
way of the viaduct, in front of Cohen's premises, is forty-five
feet above the surface of Superior Street ; and it is averred,
and there was evidence given tending to show, that the
viaduct, to some extent, shuts out light and air from his
premises; that, by reason of the viaduct, dust and other ob-
noxious substances are constantly thrown on the premises of
plaintiff, and on persons passing along the street ; that there
is constant noise and jarring his premises, day and night, by
reason of travel on the viaduct ; that the viaduct has diverted
travel from that part of Superior Street between Water
Street and the river ; and that, by reason of the premises,
the value of the plaintiff's property and his rents have been
reduced one half. True, evidence was offered by the city,
tending to show there was no ground of recovery and, there-
fore, it was for the jury to determine in whose favor the
evidence preponderated. But while the title to the street
is in the city, it must be remembered that the abutting owner
has a special interest in the street, which the law will not
only recognize, but protect. The court below seemed to
recognize this view as correct, but the learned judge who
presided at the trial virtually directed a verdict for the de-

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fendant, as already stated, upon the ground that plaintiff had
failed to comply with the Municipal Code, sec. 564, R. Stats.
sec. 2315, and the question before us is whether, in so direct-
ing the jury, there was error.

Section 564 was as follows: "Any owner or owners of
lots or lands bounding or abutting upon the proposed im-
provement, claiming damages therefor, shall file a claim, in
writing, with the clerk of the corporation, setting forth the
amount of damages claimed, together with a description of
the property owned for which the claim is made, within two
weeks after the expiration of the time required for the pub-
lication of said notice ; and all such owners as shall fail or
neglect to file their claim for damages aforesaid, within the
time aforesaid, shall be deemed to have waived the same, and
be forever barred from filing any claim or receiving any
damages therefor." Section 575 of the same code, R. S. sec.
2326, provided: "No claimant for damages shall commence
any suit until he shall have filed a claim therefor with the
clerk of the corporation, and sixty days shall have elapsed
thereafter to enable such corporation to appoint assessors to
assess such damages, return the same to the proper oflSoers,
and sufficient further time shall have elapsed, not exceeding
twenty days after the return of such appraisal, to enable the
corporation to pay the assessment." In the Act of 1872, 69
Ohio L. 138 ; 3 R. S. 616, providing for the construction of
the viaduct, it is provided, section 2, that " Owners of land
or property of any kind, and lessees of said canal, claiming
damages therefor, shall file a claim therefor in writing with
the clerk of the corporation, as required by section 544 of
said Act ; and said claims for damages shall be determined,
and said work shall be done, in accordance with the pro-
visions of the Act to which this is supplementary, in so far as
the same may be applicable."

Manifestly, there is a mistake in the figures " 544," as that
section of the Municipal Code has no relation to filing claims,
while section 564, as we have seen, does provide for filing
such claims. Perhaps if that section alone made provision
on the subject, we would have no difficulty in agreeing with
the defendant that it was intended ; People v. King, 28 Cal.
265 ; Tappan v. Tappan, 6 Ohio St. 64; Jenks v, Langdon, 21
Ohio St. 362 ; Com. v. Marshall, 69 Pa St. 328 ; Sedg. Coil.

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L. 2d ed. 354 ; Hard. Stats. 241, 247 ; but the difficulty is,
that section 575, with which plaintiff complied, provides for
filing claims as well as section 564, and the plaintiff, con-
ceding the mistake, insists that section 575 was intended,
and not section 564. The difference between the sections, it

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 42 of 73)