Moore v. City of Albany

Proceedings were instituted on behalf of the city of Albany to grade McCarty avenue, one of the public streets of that city, which was sixty-six feet wide. Ordinances were adopted by the common council, establishing the grade of the street and ordering it to be excavated, filled and formed so as to conform to the grade established, and providing that the excavating, filling and forming be done to the full width of the street, with sufficient angles of slope to protect the banks, and in height and depth to the grade-line of the street.

In pursuance of the ordinances, the board of contract and apportionment caused the street to be excavated and graded by contract at a total cost of $15,783.26. The work was done under the direction and supervision of the street commissioner and the city surveyor, and was accepted by the city. In the performance of the work a portion of the street was filled higher than the established grade, and for that purpose nearly 5,000 yards of earth were used ; and where the street was cut down through elevations, there were nearly 6,000 yards excavated on the slopes outside of the street lines upon private property, so as to secure the full width of sixty-six feet at grade, and such excavation was without the knowledge or express consent of land-owners; and where the street passed over ravines, there were nearly 26,000 yards of embankment out

All the work thus done outside of the street lines was suitable and o proper to make the street according to the requirements of the ordinances, and the expense of such work was included in the total cost of the work, which was assessed upon the property supposed to be benefited by the street improvement. The total assessment upon the property of plaintiffs’ testator was $2,164.62, in which was included $690.73, his proportionate share of the expense of extra filling above the required grade within the street lines, and the work done Outside of street lines as above specified. The testator paid the assessment against his property under protest, and subsequently his executors commenced this action upon an agreed state of facts to recover back the money thus paid, as they claimed, under coercion, on the ground that the entire assessment was rendered void by the inclusion therein of the expenses of raising the' grade, and of the work outside of the street lines on private property as above specified.

The learned brief submitted to us on behalf of the appellants has failed to convince us that the assessment assailed is invalid.

First, As to the extra filling within the street lines. This was made under the direction and with the- assent of the city officers having the work in charge. The entire work was subsequently accepted by the city, and it is entirely clear that the work as done was subsequently approved by the common council, and thus may be held to have been ratified,by them. What they could originally, have ordained they could subsequently ratify. If a vote of two-thirds of the members of the common council was needed to ratify the change of grade, we may infer from the facts submitted that such was the vote.

Second. As to the excavation outside of the street lines. This was clearly a trespass upon private property if made without the consent of the owners. If in excavating with proper care within the street lines the adjoining soil had fallen .down into the street, its owner would have had no legal cause of complaint. (Radcliff’s Executors v. Mayor, etc., 4 N. Y. 195 .) But the public authorities while grading and repairing a street have no right to go upon adjoining land and purposely take the soil thereof for any purpose. If such soil be needed for the purpose of the street, they must include the same within the street lines, or must procure the consent of the owner, or acquire the right to take the same in some of the other ways known to the laws. But no harm was done to the persons assessed by taking this soil. The street was graded and improved and they have the full benefit of it, and adjoining land-owners cannot deprive them of it. It is used without trespassing upon them, and they cannot close or interrupt the same. It was much cheaper thus to take the soil than to protect the -street by a retaining wall or in any other way, and thus the trespass, if one was committed, was really for the benefit of the persons assessed. The persons whose soil was taken may, unless debarred in some way by their own acts, sue the city or the persons who took their soil for the trespass, but the assessment cannot on that ground be assailed as invalid, as all the work was for the improvement of the street within the street lines.

Third. As to the embankments outside of the street lines. In grading a street it seems to us clear that the public authorities have no right to invade private property outside of the street lines. If it becomes necessary to use or interfere with

Fourth. As to the drains upon lands outside of the street lines. They were necessary for the protection of the street and the adjoining lands, and for reasons already given the inclusion of the expense of their construction does not render the assessment invalid.

There is one fact to which the appellants attach much importance, which has not yet been noticed. After the assessment had been laid, Edward Clowery and another, whose lands had been assessed, commenced an action in the Supreme Court against the city, to vacate and remove the assessment as a cloud upon their title, and they recovered a judgment in February, 1881, which declared the assessment null and void for the same reasons now urged by these appellants, and vacated the same as to the lands of those plaintiffs. William Moore, the deceased testator, was not a party to that action, and yet his executors claim the benefit of that adjudication. We know of no principle which will enable these appellants to claim the benefit of that judgment as res adjuMoata in their favor. It is a general rule that estoppels by judgment must be mutual, that a party cannot claim the benefit of a judgment favorable to him unless he would be bound by a judgment in the same matter if adverse to him. If the judgment in that action had been adverse to the plaintiffs, then it certainly would not have

There is also the doctrine of sta/re deeisis, which is of a different nature, When a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply' it to all future cases where the facts are substantially the same, and this it does for the stability and certainty of the law. It was the latter doctrine that was illustrated and enforced by the cases cited by the learned counsel for the appellants. In Chase v. Chase ( 95 N. Y. 373 ), we decided that an assessment which in another action had been held to be invalid, did not constitute such a defect in title to land as would justify a purchaser on account thereof to refuse to complete his purchase. We held so not because the purchaser was bound by the former adjudication to which he was not a party under the doctrine of res adjudicata, but because under the doctrine of stare decisis, the assessment which upon all the facts the court of last resort had held to be invalid, could not constitute a dangerous cloud upon title, as that court would adhere to its decision (which would also be binding upon inferior courts),whenever the same assessment again came in question. So here, if these appellants, instead of invoking the support of a decision rendered at the Special Term of the Supreme Court, had cited a decision of this court condemning this assessment upon the same facts now produced they would have Jbiad a controlling authority in their favor. In the case of Bruecher v. Village of Port Chester ( 31 Hun, 550 ), the same doctrine was also applied. This court, in a prior case ( 71 N. Y. 309 ), had held that the assessment there considered was void, and the Supreme Court in the case cited simply followed • and applied the law thus laid down. If, therefore, the case of Clowery v.

It may be said, however, that subsequently to the rendition of that judgment, the-act chapter 459 of the Laws of 1881, for the confirmation of this assessment, was passed, and thereafter the plaintiffs in that action paid fifty per cent of the assessment against them under the provisions of that act, and thus waived their objections to the assessment, and acquiesced in the occupancy of their lands by.the. embankments forming the slopes of the street if such embankments were, as now claimed, upon their lands.

In holding this assessment to be valid we do not come in conflict with any authority in this court. In People ex rel. Williams, v. Haines ( 49 N. Y. 587 ), drainage commissioners appointed under an act of the legislature made drains through lands without obtaining the title to the lands taken, and made an assessment upon lands supposed to be benefited for the expense of the drains, and the assessment was held to be invalid because the drains were laid through the lands without first obtaining grants of the right to make them from the owners. We held that there was no power in the commissioners to construct the drains and assess the cost upon the property benefited without having first acquired the title to the lands used, and we further held that the commissioners had no power subsequently to the assessment to acquire the title; and thus there was in that case no dertainty that the benefits for which the assessment was imposed would be enjoyed. In the Rhinelander Case ( 68 N. Y. 105 ) and the Cheesebrough Case (78 id. 232 ), sewers were constructed through private property without the consent of the owners. In those cases there was no law under which the title to the lands used could be obtained, and the assessments were assailed by the owners of the land wrongfully invaded. The Ingraham Case ( 64 N. Y. 310 ) was much considered in this court; and there, where a sewer was constructed upon private property, we held that mere permission from the owners would

We have not found it important to consider the effect of the confirmatory act above referred to, and' have reached the conclusion independently of that act, that the judgment should be affirmed.

All concur.

Judgment affirmed.