Smith v. Rose

CONCURRING OPINION OF

PERRY, J.

I concur in the conclusion that the bill should be dismissed.

In my opinion the offer contemplated in Section 354 is to be made to all of the abutters, whoever the class so designated may include, that is to say, to each of the abutters the portion on which his land abuts. The words “in compromise” do not, as I think, limit the class of abutters to whom the offer is to be made, but are to be read and understood as though inserted immediately after the word offered, i. e., they were intended to show the nature or the object of the offer and not to describe the permitted purchasers at private sale. Nor does the section permit the construction suggested by one of the respondents that the amount of damages, if any, claimed by an abutter by reason of the closing of the highway, may be deducted from the value of the abandoned strip as fixed by the Government, that is to say, that the words “at a reasonable price” mean at a price reasonable in view of the fact that a counterclaim is being adjusted and settled. I see no reason for giving the words last quoted any other than their ordinary meaning, to wit, “at a fair valuation.” Certainly, if, after refusal by the abutters to take at the price named, the land is, under the alternative provision of the statute, sold at public auction, the market price is the price intended and in that event no allowance can be made for any monetary claim against the Government. If it be asked whv the words “in compromise” were inserted, I suggest that the most plausible theory is that what the legislature had in mind was a satisfaction of claims, founded on justice if not on law, that abutters might make to the effect that such abutters should be given the first opportunity to acquire the abandoned strip. Of course in a case where the title to the land was not in *296tbe Government and. was claimed by tbe abutters different questions might arise wbicb need not be here considered.

Who are included within the term “abutters” as used in this section is a question the answer to which, as it seems to me, must depend upon the circumstances of each particular case. It will serve no good purpose to attempt a general definition to apply in all cases. Under the circumstances of the case at bar I am of the opinion that the respondent Mary Rose is an abutter upon the strip in question and that the complainant is not. If, as seems to be required by the weight of the evidence, that strip is to be regarded as having been formerly a part of Eort street, then it lies wholly in front of the respondent’s land and over it only has the respondent a means of ingress and egress to and from her land. Complainant’s land had a complete frontage on Eort street. That for an inconsiderable portion of its southern' boundary it adjoins the strip cannot of itself make the complainant an abutter; such a construction of the statute would be repugnant to common sense. How much of the strip, in a southerly direction, is to be offered to the complainant? The whole of it, as seems to have been contemplated in his early correspondence with the Superintendent of Public Works, a half of it, or less ? No good reason appears why he should be given a portion of what would naturally be Mrs. Rose’s frontage, nor, as I think, does a proper construction of the statute require it.

If, on the other hand, the strip, as seems to be shown by some of the evidence, was a part originally, not of Eort street, but of what was known as Old Lane which continued northerly across the land of the complainant, then even more clearly was. Mrs. Rose the only abutter upon this strip. She should be offered the portion running across her land or upon which her land fronts and likewise the complainant should be offered the portion running across his land. The latter portion has been conveyed or offered to the complainant; he alone is an abutter as to that.