State ex rel. v. Bader et al.

The taxpayer or citizen acting in a representative capacity, stands the same as one in an individual capacity. If he has an equitable action, and has been diligent and alert, comes into court with clean hands, having done equity, he may have a standing; otherwise not.

In the case of Babcock v. The City of Fond Du Lac, 58 Wis., 230, the first proposition of the syllabus is as follows: "One who voluntarily. pays a void tax with knowledge of the facts rendering it void, can not recover back the amount so paid, nor can he maintain an action to restrain the application of the money raised by such tax to the purpose for which the tax was levied."

The court in the opinion say: "This is a bill in equity, and to maintain the action the plaintiff was bound to present affirmatively such a case as would entitle him to equitable relief. The substance of all the allegations of the complaint is that the plaintiff was a resident freeholder and taxpayer in the city and that the contract was void, because it created a debt in excess of the constitutional limitation. The action is not brought to prevent any injury, nor resist any burden, nor to restrain any diverson of any fund from the purpose for which it was raised to a different use. On the contrary the only object of the action seems to have been to prevent the money from being applied to the very purpose for which the tax was levied, the money paid and appropriated. There are no equitable considerations why the court at the instance of the plaintiff should interpose to prevent the doing what the plaintiff and other taxpayers voluntarily put it in the power of the city and its officers to do. The contribution having been voluntarily made to a particular fund for the purpose of having it applied to a particular object, the plaintiff as such contributor cannot now successfully invoke the aid of equity to prevent such application."

In the case of Kellog v. Ely, 15 O. S., 66, the court say: "We do not find it necessary to determine any one of the many questions made and argued by council in the case as to the legality or illegality of the proceedings by which this ditch was established, because if we take for granted all that the plaintiff below claims in this respect, we are of opinion that he does not make out such a case as to entitle him to a remedy by injunction at the hands of the court of equity. It is not for every threatened violation of the legal rights of a party that a court of equity will intervene with its preventive remedy by injunction even in cases where that remedy would be efficient. A party appealing to a court of equity must make a case which can commend itself to the conscience of the court.

These last two cases bear directly on the matter here in controversy. No complaint was made as to this law or this tax by any taxpayer; the tax was all paid without a single protest.

Taxes voluntarily paid, under well settled law, cannot be recovered back by the taxpayer and by well settled law, it cannot be expended for purposes other than that for which it was levied. It would therefore have to remain in the treasury at least until some legislative action might be had in regard to it. And at the same time there is no claim made that the money is not to be expended in accordance with the act under which it was collected.

We are unable to see any equity in plaintiff's case. If the act in question was unconstitutional, he should have spoken before the tax was levied and collected and before those who were compelled or authorized to act under it had acted. Then a court of equity would have listened

Huron Circuit Court.

to him, but now it is too late. And we will not consider whether the law is constitutional or not.

The petition will be dismissed.

Theo. Horstman, for Plaintiff.

Speigel, Foraker & Rendigs, for the County Commissioners.

WATERWORKS-APPROPRIATING LANDS-EVIDENCE. [Huron Circuit Court, November 10, 1896.]

Haynes, Scribner and King, JJ.

LEWIS S. GIBSON ET AL. V. THE CITY of NorwaLK.

EVIDENCE OF THE ADAPTABILITY OF LANDS SOUGHT TO BE APPROPRIATED. In determining the market value of lands sought to be appropriated by a city for water-works, the jury are precluded from considering its enhanced value, from the fact that it was adapted for a reservoir, which was the very purpose for which it was being appropriated, and the jury is not permitted to make any use of the fact that such lands may have increased in value by the proposal or construction of the work for which it is taken.

BY THE COURT:

This is a petition in error, to reverse the judgment of the court of common pleas, in a proceeding brought under chapter 3 of the Revised Statutes, for the purpose of appropriating certain lands for water-works

purposes.

The city of Norwalk filed its application in the court of common pleas to appropriate lands therein described for water-works purposes, the particular object being to secure lands of the plaintiffs in error, in connection with other lands, included in the same proceedings, and the lands which it had acquired by purchase, to constitute a reservoir to be used in connection with its system of water-works. The case was tried in the court of common pleas, and certain errors are alleged that occurred on the trial, in the refusal of the court to permit certain evidence to be given and in the charge of the court.

The errors complained of in the rulings of the court on the testimony and also in the charge relate to the measure of damages, or to the elements of value, which witnesses might consider in giving an opinion as to the value of the property appropriated. There is a second question made in the charge of the court that the court charged the jury that the burden of proof was on the property owners to establish the value of the property by a fair preponderance of the evidence.

The question as to the valuation, the method of arriving at it, is set forth in the bill of exceptions in the testimony of W. H. Price, a witness called by the city, and who was, on cross-examination, asked by the attorney for plaintiffs in error, the following questions:

Q. "Is it not true that in estimating the market value of the various tracts, you do not consider the natural basin, and its adaptability for waterworks purposes?

A. "I do not think I did consider the water-works matter at all. I simply took the value of the property. I did not otherwise than that. Q. "Is it not true that these lands form a natural basin, and that to make the necessary reservoir, comparatively little outlay of labor and money will be required?

Gibson et al. v. The City of Norwalk.

This latter question was not objected to, but the court interrupted the witness, holding that the question was improper, and to the ruling of the court, counsel for plaintiffs in error excepted, and then asked this question:

Q. "Considering the natural adaptability of these ands for waterworks purposes, if they have a special adaptability for that purpose, what do you say the value of these lands is?"

This was objected to, and the objection sustained, and it was stated by counsel that he expected to prove that the conformation of the lands in controversy was such as to make them plainly adapted for the reservoir.

There was some other testimony offered, going to show that the lands in question formed a part of a natural basin or valley, surrounded or bounded on both sides by a high embankment, and from the appearance of the ground it could be readily said by a witness, or by any observation, that with no more expense than was necessary to erect a dam at some point, connecting these two banks, the lands in question could be formed into a reservoir.

Upon this subject the land owners requested the court to charge certain propositions, to wit:

(2.) "In ascertaining the market value of the lands belonging to the defendants, and described in the application filed in this case, you will consider the fact, if you find from the evidence that it is a fact that said lands are adapted to reservoir purposes."

(3.) "The adaptability of the lands in controversy as a source of water-supply, or for reservoir or water-works purposes, if you find from the evidence that it is so adapted, is a circumstance to be considered in ascertaining its market value."

(6.) "In determining the market value of the various tracts of lands appropriated, you are not precluded from considering their enhanced value, if any they may have at this time, on account of the contemplated improvement for water-works by the city."

The city also called a witness, William Perrin, who testified on crossexamination, and without objection, that these lands were more valuable for pasture lands than anything else; that he did not know as they were good for anything else, unless for water-works; that it was a very good. place for water-works; that he knew of no other place as near the city as these lands as available for water-works purposes; that this was the most available sight; that it was in the shape of a natural basin; that less work would be required here than on any other sight that had been examined; that it would require no expenditure for embankments except for dam; that he considered these lands appropriated valuable for waterworks purposes; that it was elevated above the city, and otherwise desirable.

It is clear from the questions asked, which were objected to, and to the request to charge the jury that counsel for the land owners sought to have introduced in evidence before the jury, and considered by them as an element in fixing the value of the property taken, the fact that these land, by their natural formation were specially adapted for the use which the city desired to make of them; that they were so located as to be the ost, if not the only available sight for such purposes; and that the city was in a position where it was obliged to take this particular property and that the necessity of the city to acquire it; and the facts that the plaintiffs in error were the owners of it, should be considered by the

Huron Circuit Court.

jury to enhance its value for the particular purpose for which the city proposed to use it. And the question is raised whether that was a proper ment to be considered, either by the witnesses in giving their evidence, or by the jury in rendering its verdict.

We think the case applicable in cases of appropriation is reasonably well settled and can be found from an examination of cases, some of which we will cite. One of the first of these is found in the 4th O. St., page 208, and in that part of the opinion on pages 328 to 332. In the course of the opinion, on page 331, Judge Ranney uses this language, rearing to section 5, article 13, of the constitution, as compared with secion 19 of the bill of rights, he says:

"The rule of compensation prescribed in this section (section 19) for the government of a jury has been rightly apprehended in the argument; ut how a different rule is elicited from the language of the other section is not easily perceived. By the one, the compensation is to be assessed 'w.hout deduction for benefits,' and by the other 'irrespective of benefits;' and by each, a full compensation is required. Now, when is a man fully compensated for his property? Most clearly and unquestionably, when he is paid its full value, and never before. The word 'irrespective' retes to this full compensation, and binds the jury to assess the amount, without looking at or regarding any benefits contemplated by the construction of the improvement. When this is done, and this consideration wholly excluded, the jury have nothing to do but ascertain the fair market value of the property taken; which is but saying that nothing shall be deducted from that value on account of such benefits."

Again he says, on page 332:

"That whether property is appropriated directly by the public, or through the intervention of a corporation, the owner is entitled to receive its fair market value at the time it is taken-as much as he might fai expect to be able to sell it to others for, if it was not taken-and this amount is not to be increased from the necessity of the public, or the corporation to have it, on the one hand; nor diminished from any necescy of the owner to dispose of it, on the other. It is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardain; and without any regard to the external causes that may have contributed to make up its present value. The jury are not required to consider how much, nor permitted to make any use of the fact that it nav have increased in value by the proposal or construction of the work for which it is taken."

In Railway Company v. Longworth, 30 O. S., 108, the court says on page 112:

"Keeping in mind the general rule applicable to all actions for compensation or damage that it is the actual as distinguished from any speculative loss that must guide the jury; we think that any facts calculated to fairly enhance the value of the property taken or increase the damage to the residue of the tract may be shown by the owner and that on the other hand, it is clearly competent for the railway company to show the converse for the purpose of reducing the recovery."

In that case it was a question whether the owner might introduce plat which he had made of the property in question, upon which it peared he had divided the property into town lots, for the ostensible purpose of selling the same, the plat never having been acknowledged or recorded, so as to make it a legal dedication and it was held that he plat was admissible for the reason that it was one of the facts in exist

Gibson et al. v. The City of Norwalk.

once at the time of the appropriation proceedings, and might be considered in connection with all the other evidence, to ascertain what the alue of the land was. If it had been shown that there was no market value for town lots at the place in question, the fact that the owner had platted them would have, of course, no weight with the jury. While, on the other hand, if there was a market, the platting of the land made it valuable for such market, so that it could be sold in small lots rather than in larger tracts.

We are referred to the case of Goodwin . Cincinnati and White Water Canal Company, as authority in favor of the admissibility of this evidence, and of the claim which counsel made with reference to the rule of value. This was an action brought by certain stockholders of the Cincinnati and White Water Canal company, who set forth that the canal company had been the owners of the canal, and who claimed that the property of the canal, the canal lands had been, by some illegal agreement between its officers and the officers of a railroad company, who were, part of them, officers in both companies, by which the canal lands had been sold, or an agreement entered into as to its value, and a pretended proceeding for condemnation had been instituted, in which the court had entered up a judgment by consent, and without the intervention of a jury for the amount agreed upon, and which, they claimed, was grossly inadequate, and asked to have the sale set aside. The first principle of law which the court applied was that any such sale of trust property by the trustee to himself would be regarded as fraudulent per se, if there was any under-valuation in the value of the property, and the court found that all of the proceedings and acts of the officers, who had done anything with reference to this transfer were actually fraudulent, and that from the evidence it appeared that the lands were of greater value than the amount that was paid, or agreed to be paid for them; that advantage had been taken of the fact that the canal company was, at the time, insolvent, was earning nothing, and for that reason its lands had been undervalued, and transferred to the railroad company, who were proposing to construct a railroad upon them; and they held, that while the court below was right in refusing to set the sale aside, that it had erred in ruling out testimony, which had been offered as to the value of the lands taken and granted a new trial.

Another case, which seems to state the rule pretty clearly is in 115 Penna. St. 331, in which the court say, as to the market value of the land, and the value to apply in appropriation proceedings that:

"The market value of land is not necessarily, as would sometimes seem to be supposed, the price which it would command in a forced sale, or public auction. It is estimated by a fair consideration of the location of the land, the extent and condition of its improvements, its quantity and productive qualities, and the uses to which it may be reasonably applied, taken with the general selling price of lands in the neighborhood at the time, the price which, upon full consideration of matters stated the judgment of well informed and reasonable men will approve, may be regarded as the market value."

Another case directly in point is a case of Moulton v. Newbury Port Water Company, 137 Mass., 163, in which case the land owners sought to show that the lands taken by the water company were admirable to form, at slight expense, a natural basin for water, and offered to prove what was their fair market value for such purposes to the water company. This was excluded and the court says: