Schneider v. City of Rochester

The plaintiff is a resident of the. city of Chicago and the owner of two lots known as numbers seven and eight of the Atwater and Andrews tract in the city of Rochester. On the 22nd day of August, 1893, the common council of that city passed an ordinance by which it determined to open a street, ninety feet in width, from Central avenue to Granger street, the west line of which should be the west line of lot number seven, and the east line of which should be the east line of lot number eight; that the territory necessary to be taken therefor consisted of the lots mentioned, and that the whole expense.of such improvement should be assessed upon the portion of the tim’d ward lying south of the north line of the Hew York Central and Hudson River railroad.

In pursuance of that ordinance, proceedings were instituted by the defendant to condemn and acquire the title to the plaintiff’s lots under the provisions of its charter. Such proceedings were had that on the 18th of January, 1894, the County Court of Monroe county appointed three commissioners to appraise the damages the plaintiff would thereby sustain and the compensation she should receive therefor. The commissioners met, duly qualified, and, after inspecting the property to be taken, heard the proofs and allegations of all parties interested, made their report with the evidence taken by them, and the same was filed in the Monroe county

On the 29th of March, 1894, the report of the commissioners was presented to the common council, which thereupon fixed the third day of the following April as the time for hearing objections to its confirmation. At a regular meeting held on that day, this report was taken up for action thereon. Ro allegations against its confirmation were made, except that the alderman who represented 'the ward in which the street was proposed to be opened, stated that in his opinion the aiyard of damages was excessive and the value of the property did not exceed $20,000, and the assistant city attorney stated that in his opinion the award was excessive and the market value of the property did not exceed the sum of $15,000 or $16,000. Ro proof to sustain those allegations was taken by the common council, but it at once adopted a resolution setting aside the report of the commissioners, referred the matter to new commissioners to be appointed by the Monroe County Court, and directed the city attorney to make the necessary application for their appointment. At that meeting the plaintiff" presented a written communication to the common council requesting that in case it set aside the report it should also repeal the ordinance for the opening of the street, and that no further proceedings should be taken to condemn the land in question, but that the opening of such street should be abandoned. This communication was received, filed and published. Upon its receipt the common council at once qiassed a further resolution requiring the city attorney to give notice to the plaintiff, and to others whom it might concern' that an application would be made to the Momoe County Court on May 'Tth, 1894, for the appointment of new commissioners to ascertain and appraise the compensation which the plaintiff was entitled to .receive by reason of taking said lots for the opening of the proposed street.

This action was thereupon commenced to enjoin and

The first and practically the only question relating to the merits of this controversy is whether, in the proceeding for the condemnation of the plaintiff’s property, the common council of the defendant had authority under its charter 'to set aside the report of the first commission and authorize the city attorney to make application for the appointment of a new one. The defendant contends, and the courts below have held, that it possessed that power. It relies upon section T79 of the charter to sustain that conclusion. That section provides : “ Upon the filing of such report the said common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time tó time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners to be appointed by the said court as before, who shall, thereupon, proceed as hereinbefore provided. But the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned.” (L. 1880, ch. 14.) Thus, the precise point presented is whether upon the filing of the report the common council could set it aside and have a new commission appointed upon its own

The counsel for the respondent insists that this authority is expressly conferred by that section. If this contention is correct, the common council might set aside any number of reports that were made by commissioners to appraise the plaintiffs damages, upon the mere assertion of one of its members or officers that the award was excessive and thus compel her to defend as many proceedings for appraisal as it saw fit to order. We find no such authority in the section relied upon. We cannot believe that in adopting that provision it was the purpose of the legislature to authorize the common council to arbitrarily set aside the report of a commission and have a new commission appointed because it or some officer of the city might assert that the compensation was too great, or to confer upon it the right to have as many successive appraisals in the same proceeding as it thought advantageous to the city. The injustice of such a power is manifest. If that right existed, the common council might, where the value of the property involved was inconsiderable, compel the owner to expend its entire value in defense of his title and in seeking to obtain just compensation, and thus substantially confiscate his property.

Moreover, if this statute was to oe thus construed, _uS constitutionality would be difficult to maintain. With our views of this case, however, we do. not regard it necessary to decide as to the constitutionality of such a statute. Therefore, as this court does not usually determine such questions, unless necessary to the decision of the case under consideration, the constitutionality of this provision, if construed as claimed by the respondent, will not be considered or determined.

But if it were to be assumed that under this statute the common council might, in a proper case, set aside an award because it was excessive, it by no means follows that it could do so without any proof of that fact, except the mere unverified statement of parties who were interested in the litigation.

The authority of a municipal corporation to take private property must be expressly conferred, and the power and manner of its exercise strictly pursued. “ Since the power to condemn private property against the will of the owner is a stringent and extraordinary one, based upon public necessity or an urgent public policy, the rule requiring the power to be strictly construed, and the prescribed mode for its exercise strictly followed, is a just one, and should, within all reasonable limits, be inflexibly adhered to and applied.” (Dillon on Municipal Corporations, § 604; In re City of Buffalo, 78 N. Y. 362 ; People ex rel. Odle v. Kniskern, 54 N. Y. 52 ; Adams v. Saratoga & W. Railroad Co., 10 N. Y. 328 ; People ex rel. Johnson v. Vil. of Whitney's Point, 102 N. Y. 81 ; Cooley on Constitutional Limitations [6th ed.], 231, 648; Lewis on Eminent Domain, _§§ 254, 341.) Fío intent to deprive a person of his property rights should be imputed to the law-making power, unless it is expressly declared or is to be necessarily implied from the language of the statute, and it is never necessarily implied if it admits of any other reasonable construction. (Lewis on Eminent Domain, § 341.)

While it is quite manifest that the earlier provision of this

In the Rock Island case, in discussing this question, it was said: “To permit a corporation, clothed with the right of eminent domain, to abandon any judicial ascertainment of value that does not conform to its wishes, and through the instrumentality of new petitions submit anew the question of just compensation to successive juries, until a verdict is returned which it regards as sufficiently low, would be to give an undue advantage to one of the parties to the controversy, and work a rank injustice to the citizen and property owners.”

In the Iowa case it was said: “ When the case becomes one between two parties, and the city is one party, seeking to take the property of an individual for the public use, it is claiming too much that one of the parties should have the option to reject an assessment which may not happen to suit his views. * "x" * The authority for one party to set aside such an award or verdict when it may not suit him, is not to be drawn from a doubtful implication. If such a power can stand at

In City of St. Joseph v. Hamilton it was said: “ There is no just or safe rule of construction by which the party who is the main actor, and who has the extraordinary privilege of instituting the proceedings and summoning the jury, should be allowed, of its own pleasure, not only to reject the finding, but to proceed as often as it pleases till it finally obtains a verdict that suits its views. This is in effect allowing the party to set aside a judgment according to its own caprices till it finally obtains one that suits its purposes.”

In the District of Columbia case, the judge delivering the opinion of the court declared: “ If these proceedings are to be regarded as legitimate legal proceedings, and not as a mere farce, the public authorities are as much bound by them as the owners of the land. It requires neither elaboration of argument nor citation of authorities to show that, when the state becomes a party to a suit it is as much bound by the judgment or decree as an individual. It may not litigate the matter again any more than an individual would be entitled to litigate it; subject only to the same rules of law that would govern in the case of individuals, the adjudication is absolutely binding and conclusive upon the state; and no action, either of its legislative or of its executive department, could be construed to give such adjudication less binding force than it would have between individuals. This position we must regard as elementary and fundamental. * "x" * It will scarcely be questioned that, if the District of Columbia were satisfied with the valuation and the owners of the land were dissatisfied with it, the latter would still be compelled to part with their land for the price adjudged to be its value. Can it be allowed that they would be bound and yet not the district ? And can the latter be permitted to weary out the owners with

We have examined the authorities in this state cited by the respondent to sustain-a contrary doctrine, but have found none which establishes a principle in conflict with the conclusion we have reached. This view of the case renders it unnecessary to determine whether the statute is constitutional, if subject to the construction contended for by the respondent, as we are clearly of the opinion that it will bear no such construction. We are also of the opinion that the proceedings upon the part of the common council were not justified by the statute, but that its action was unauthorized and that the plaintiff was entitled to the relief demanded.

Before leaving this branch of the case it may be proper to add that there is no claim upon the part of the plaintiff that the defendant was bound to take her property at the price fixed by the commission. This is plainly indicated by the notice which was given to the common council whereby she conceded its right to abandon its proceeding, and requested that it should do so, unless the commissioners’ report was con-finned. Therefore, much of the argument of the defendant, and many of the authorities cited in its behalf, have no application to the question presented upon this appeal.

The only remaining question relates to the remedy employe^ by the plaintiff to protect her rights and property. The defendant contends that as the plaintiff had an adequate remedy at

The judgments of the Appellate Division and of the Special Term should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgments reversed, etc.