McDonald v. The Mayor.

the statute laws. Such certification did not precede the reception of the material, nor was the certification by the head of the department; nor was the taking and use of the material, nor payment for it, authorized by the common council. Nor can it be that the provisions of the statute are alone for the instruction of the department and officials of the defendant. They were a restraint upon them, but upon other persons as well. They put upon all who would deal with the city the need of first looking for the authority of the agent with whom they bargain. Quite clearly do they impose upon the paying agent of the defendant a prohibition against an unauthorized expenditure. And are they not also a restraint upon the municipality itself? They are fitted to insure official care and deliberation, and to hold the agents of the public to personal responsibility for expenditure; and they are a limit. upon the powers of the corporation, inasmuch as they prescribe an exact mode for the exercise of the power of expenditure.

It is said that the plaintiff had a right to presume that the agents of the defendant transacted their business properly, and under sufficient authority. Does not this involve, also, that the plaintiff had a right to presume that it was the business of the superintendent of roads to purchase material for the city upon the credit of the city, and that he had authority so to do? This cannot be maintained. It is fundamental, that those seeking to deal with a municipal corporation, through its officials, must take great care to learn the nature and extent of their power and authority. Hodges v. Buffalo, 2 Denio, 110; cited 33 N. Y. 293; Cornell v. Guilford, 1 Den. 510; Savings Bank v. Winchester, 8 Allen, 109. The plaintiff cites United States Bank v. Dandridge, 12 Wheat. 70. But there it is said that if the charter imposes restrictions they must be obeyed. Could the plaintiff presume that it was the duty of the defendant to keep the Kingsbridge road in repair? No; he must look to its charter to learn of that duty. The same instrument would show him just how it must obtain the material to perform that duty. The Gas Company v. San Francisco, 9 Cal. 453, is also cited. The real question there decided was, that a city can be held to have incurred a liability otherwise than by ordinance. There was no stress in that case upon any inhibitions in the charter of the city. The result was arrived at by a divided court.

But the main reliance of the plaintiff is upon the proposition that the defendant, having appropriated the materials of the plain

McDonald v. The Mayor.

tiff and used them, is bound to deal justly and to pay him the value of them. The case of Nelson v. The Mayor, 63 N. Y. 535, is cited. The learned judge who delivered the opinion in that case does, indeed, use language which approaches the plaintiff's proposition; but the judgment in that case did not go upon the doctrine there put forth; and when the opinion is scrutinized it does not quite cover this case. It is said: "If it (the city) obtains property under a void contract, and actually uses the property, and collects the value of it from property owners by means of assessments, the plainest principles of justice require that it should make compensation, for the value of such property, to the person from whom it was obtained." The words we have marked in italics indicate a difference between the two propositions; though it is to be admitted, not a great difference in the principles upon which each rests. The case in the California courts (Argenti v. San Francisco, 16 Cal. 255) goes upon the ground set forth in the opinion in Nelson's Case, supra. There is, however, a more radical difference, than that above noted, in the two cases cited and that in hand. In those two cases the way was open for implying & promise to pay what the property was worth, if with no disregard of statute law, such an implication was admissible; that is to say, there was in those cases, so far as appears from the facts, no express inhibition upon the city that it should not incur a liability save by an express contract. Here there is an express legislative inhibition. upon the city, that it may not incur liability unless by writing and by record. How can it be said that a municipality is liable upon an implied promise, when the very statute which continues its corporate life, and gives it its powers, and prescribes the mode of the exercise of them, says, that it shall not, and hence cannot, become liable, save by express promise? Can a promise be implied, which the statute of frauds says must be in writing to be valid? How do the cases differ? The Bank of the United States v. Dandridge, supra, which is a leading case upon the doctrine of the liability of a corporation aggregate, upon a promise implied, holds, as we have already said, that if the charter imposes restrictions upon the manner of contracting, they must be observed. And the California cases above cited concede the same. It is plain, that if the restriction put upon municipalities by the legislature, for the purposes of reducing and limiting the incurring of debt and the expenditure of the public money, may be removed, upon the doctrine

Parsons v. Johnson.

now contended for, there is no legislative remedy for the evils of municipal government, which of late have excited so much attention and painful forboding. Restrictions and inhibition by statute are practically of no avail, if they can be brought to naught by the unauthorized action of every official of lowest degree, acquiesced in, or not repudiated, by his superiors. Donovan v. The

Mayor, etc., 33 N. Y. 291, seems to be an authority in point, though the exact question now presented was not considered. And incidental remarks of DENIO, J., in Peterson v. The Mayor, 17 N. Y. 449, are to the same purport. And see Peck v. Burr, 10 id. 294. The views here set forth are not to be extended beyond the facts of the case. It may be, that where a municipality has come into the possession of the money or the property of a person, without his voluntary intentional action concurring therein, the law will fix a liability and imply a promise to repay or return it. Thus, money paid by mistake, money collected for an illegal tax or assessment; property taken and used by an official, as that of the city, when not so:-in such cases, it may be that the statute will not act as an inhibition. The statute may not be carried further than its intention, certainly not further than its letter. Its purpose is to forbid and prevent the making of contracts by unauthorized official agents, for supplies for the use of the corporation. This opinion goes no further than to hold, that where a person makes a contract with the city of New York for supplies to it, without the requirements of the charter being observed, he may not recover the value thereof upon an implied liability.

The judgment should be affirmed.

Where the owner of land has a way over one portion of it for the benefit of another portion of it, such way is a non-continuous quasi easement and will not pass on a sale of the dominant portion, by the word “ appurtenances merely, but there must be words sufficient to create a new easement.

Parsons v. Johnson.

The owner of land, over which was a way for his convenience, sold the land adjacent to the way, describing it by precise and definite boundaries, but the way was not mentioned and there were no general words except the word "appurtenances." The way was not necessary to the purchaser. Held, that the way was a non-continuous quasi easement and did not pass.

A

The

CTION for an injunction. The opinion states the case. plaintiff had judgment upon the report of a referee, and this judgment was affirmed by the General Term.

W. F. Cogswell, for appellants. The way claimed by plaintiff was a non-continuous quasi easement, which did not pass by the word "appurtenances." Goddard on Easements, 70-74, 83-86; Polden v. Bastard, L. R., Q. B. 156; Washburn on Easements, 39, 40, m. p.; Dodd v. Burchell, 1 H. & C. 113; Thomson v. Waterlow, L. R., 6 Eq. 36; Langley v. Hammond, L. R., 3 Exch. 161; Worthington v. Gimson, 2 E. & E. 618; 105 Eng. C. L. 616; Russell v. Harford, L. R., 2 Eq. Cas. 507; Fetters v. Humphreys, 4 C. E. Green [N. J. Ch.], 471; Lampman v. Milks, 21 N. Y. 505; Pearson v. Spencer, 1 B. & S. 571.

George F. Danforth, for respondent. Plaintiff, as owner of the land east of the roadway, was entitled to a right of way over it. Huttemeier v. Albro, 18 N. Y. 48; Lampman v. Milks, 21 id. 505; Curtiss v. Ayrault, 47 id. 73; Simmons v. Cloonan, id. 3, 9; Staple v. Heydon, 6 Mod. 1-4; 3 Kent's Com. (2d ed.) 420; 1 Sum. 502; Washburn on Easements, 309. The subsequent assignment by Jones and the deeds from his heirs could not affect plaintiff's rights. Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61.

EARL, J. This action was brought for the purpose of perpetually enjoining defendant's testator from erecting a wall along the east line of premises claimed to be owned by him and adjoining the lands of the plaintiff on the west. The plaintiff claims to have a right of way over the premises which would be obstructed by the wall.

The right of way as claimed is twenty-five feet wide along the west side of plaintiff's land. Prior to the 30th day of May, 1849, Jones and Chamberlain owned, as tenants in common, the lands at the time of the commencement of this action owned by the plaintiff and the testator; and the strip of land twenty-five feet wide

Parsons v. Johnson.

was part of the lands thus owned in common. The way was then used for the convenience of the owners of the lands in passing to and from certain portions thereof. On the 30th day of May, 1849, Jones and Chamberlain conveyed to the Jones Cotton Factory land bounded on the east by the west line of the way, by deed containing the following clause: "Together with the right to use in common with Jones and Chamberlain, their heirs and assigns, a way to be laid out on the easterly side of the premises hereby conveyed twenty-five feet in width." In 1850, Chamberlain commenced against Jones an action for the partition of the remainder of the land held by them in common, and the land allotted to Chamberlain in that action was bounded on the east by the west line of the way as now claimed by the plaintiff. The land allotted to Jones was bounded on the west by the same line, and he thus became the owner in fee of the land covered by the right of way. It was provided in the judgment of partition that the land allotted to Jones should be subject to the right of way granted to the Jones Cotton mill, and to a right of way for Chamberlain, and that the way should be forever "kept open as a common way for the common use and enjoyment" of Jones and Chamberlain, their heirs and assigns. Subsequently Jones mortgaged the land lying east of the way by a description which made the west line of the land mortgaged coincident with the east line of the way; but the way was not mentioned as a boundary, and was in no way mentioned in the mortgage unless included in the word "appurtenances," the only general word used. The fee of the twenty-five feet lying west of the mortgaged premises remained in Jones. This mortgage was foreclosed, and the plaintiff's title is under the mortgage, and he has all the land and rights which the mortgage conveyed. The testator first obtained title to the land on the west side of the way, with the right of way as previously used by the Jones Cotton mill, and by Chamberlain, and thereafter he obtained title to the fee of the strip of land covered by the way, and thus the fee and the right of way became united in him.

The plaintiff cannot claim this as a way of necessity, as it was simply convenient for him, and not necessary for access to his land. The mortgage under which the plaintiff claims title describes the land conveyed by definite boundaries, and conveys them with the "appurtenances." The plaintiff can, therefore, claim the way only upon the ground, either that it was an easement