Katsch v. New Haven , 86 Conn. 326 ( 1912 )

The principal questions discussed before us were whether the plaintiff was entitled to the notice by publication in the newspapers, provided for in § 81 of the city charter, as affecting her right of appeal given by § 85; and if so, whether the failure of the defendant to publish such notice rendered the proceedings for the establishment of the building line void.

Section 85 gives the right of appeal to any one aggrieved by the order of the common council (board of aldermen) making the assessment, "within thirty days after the doing of the act complained of."

The act by which the plaintiff was aggrieved was the establishment of the building line without awarding her any damages.

Since by the acceptance and approval of the report of the bureau of compensation and the department of public works, the benefits and damages were assessed as equal, and there were, therefore, no damages to be paid, the act of making the assessment and adopting the building line and devoting the plaintiff's property to the designated public use, was, by the language of § 81, fully completed when the report of the department of public works was accepted and recorded in the records of the board of aldermen, and the time within which an appeal could be taken began to run then, and was limited to thirty days from that time.

The publications in the newspapers, provided for in § 81, formed no part of the making and completing of the assessments, and the establishing of the building line. By the express provisions of the charter the assessments were completed and the building line established when the report of the department of public works was accepted and recorded and the damages paid, if there were any damages to be paid. The publications in the newspapers were, by the language of § 81, not to be made until after the assessments were thus legally completed, and the building line so established. Again, as the charter does not expressly provide for the publication of but one notice, which was to be published within one week after compliance with the provision in regard to the payment of damages, and after thereport of the director of public works that the improvements"have been completed," it is not clear when that notice was to be published when the work was not completed until more than one week after compliance with the provision in regard to the payment of damages.

But whether § 81 provided for the publication of only one notice, or of two notices, one of which was to be made within one week from the time the damages had been paid, and the other after the public work had been completed, they were not notices which interested parties were entitled to receive as affecting their right of appeal. Such notice or notices are in no way referred to in the provision of § 85 fixing the time when an appeal may be taken. They seem to have been intended to be published only in cases where, by the assessment, damages were awarded or benefits were required to be paid, and as notices to persons interested, that the damages awarded them had been paid in the manner provided in § 81, and as notices to persons who had not paid the benefits assessed against them, that such benefits were due and payable.

The publication of such notice or notices was undoubtedly omitted in the present case because, by the assessment adopted, no damages or benefits were to be paid, and it could not therefore properly be said that the damages had been paid or that the benefits had become payable. Section 81 makes no provision for such publication, within one week after the assessment is completed, in cases where there are no damages or benefits to be paid.

But it is claimed that if these publications were only notices that damages had been paid, in the manner provided in § 81, or that benefits were payable, that the proceedings for the assessment of damages and the establishment of a building line were void because, in that case, property-owners received no notice of the assessment, and therefore no opportunity to be fully heard by an appeal to the Superior Court, as the charter contemplated they might be heard, upon the question of the assessment made.

This claim cannot be sustained. In the absence of any averment to the contrary, we must assume that the plaintiff received the notice provided in §§ 78 and 79 of the charter, of the public hearing regarding the establishment of the building line, and notice of the hearing before the bureau of compensation as to the assessment of benefits and damages, provided for in § 80. Keating v. Macdonald, 73 Conn. 125, 130,46 A. 871; State v. Main, 69 Conn. 123, 140, 37 A. 80;Atwater v. O'Reilly, 81 Conn. 367, 71 A. 505. Having been notified of the inception of the assessment proceedings, and of the hearing before the bureau of compensation, the plaintiff became chargeable with notice of the entire proceedings from the time of the reference to the board of compensation for the purpose of ascertaining benefits and damages, to the time the report of the department of public works was finally accepted and ordered to be recorded. The entire matter was, in contemplation of law, one proceeding, of each step in which the plaintiff was not entitled to receive a new notice, in order to render the proceedings valid, unless such new notice was required by the provisions of the charter. Fair Haven W. R. Co. v. New Haven,75 Conn. 442, 454, 53 A. 960; Gilbert v. New Haven,39 Conn. 467, 472.

The facts averred in the complaint fail to show either that the plaintiff lost her right of appeal by reason of the failure to make the publications provided in § 81, or that the proceedings became invalid by reason of such failure.

The plaintiff was not prejudiced by the decision of the court upon the defendant's motion to state in two counts what was claimed to be two causes of action. In the substituted complaint, containing but one count, she was permitted to make the two desired prayers for relief based upon the defendant's failure to make the publications described in § 81.

After the trial court had sustained the demurrer to the complaint, the plaintiff asked leave to amend the complaint by alleging, in substance, that since her petition for a change in said building line, as described in the complaint, § 78 of the city charter had been amended, making it more difficult than before to obtain from the board of aldermen any change of a legally established line. The court properly refused to permit the amendment, upon the ground that such amendment could not affect the sufficiency of the complaint or the decision of the court upon the demurrer.

There is no error

In this opinion the other judges concurred.