at any time before taking possession of the property under completed proceedings, or before the final confirmation, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested rights in others have attached. Until the assessments of damages have been made, the amount cannot be known, and it is reasonable that after having ascertained the expense of the project the corporation should have a discretion to go on with it or not, as it sees fit.'

Sower v. Philadelphia, 35 Pa. St. 231. An order laying out a street or highway may refer to a "plan," in which case the plan meant may be shown and identified by evidence aliunde, and used to prove the location and limits of the highway. Stone v. Cambridge, 6 Cush. 270, 1850. Sufficiency of description of proposed street: Stewart v. Baltimore, 7 Md. 500.

As to mode of procedure, and various points of practice respecting the assessment of damages, see Redfield on Railways, sec. 72, where many of the cases are referred to and stated.

1

Anthony Street, 20 Wend. 618, 619, and prior cases in New York there cited; Martin v. Mayor, &c. of Brooklyn, 1 Hill (N. Y.) 541, 1841; In re Dover Street, 18 Johns. 506; Millard v. Lafayette, 5 La. An. 112, 1850; Roffignac Street (matter of), 4 Rob. (La.) 357; Canal Street (matter of), 11 Wend. 155; McLaughlin v. Municipality, 5 La. An. 504; St. Joseph v. Hamilton, 43 Mo. 282; State v. Hug, 44 Mo. 116; Hullin v. Municipality, 4 Rob. (La.) 357; S. C., 11 【b. 97, 1845; Water Commissioners of Jersey City, 31 N. J. (2 Vroom) 72, 1864; Clough v. Unity, 18 N. H. 75; Pillsbury v. Springfield, 16 N. H. 565; Higgins v. Chicago, 18 Ill. 276; State v. Graves, 19 Md. 351, 1862, where the subject is well discussed by Bowie, C. J. After verdict and judgment in favor of the land owner (Hawkins v. Rochester, 1 Wend. 54), or after confirmation of the report, private rights attach, and the cor poration cannot discontinue the proceedings, although the court may refusc ■ mandamus and leave the parties to their remedy, by action. People v. Brooklyn, 1 Wend. 318, and cases cited; In re Dover Street, supra; Duncan r. Louisville, 8 Bush (Ky.) 98, 1871. A city may revoke ordinances establishing new streets before they are opened, if, in the exercise of its discretion, it ascertains that the opening of them would be injurious to the public interest; provided, however, that no vested right acquired under the dedication is affected by the change." Per Rost, J., Municipality v. Levee Company, 7 La. An. 270, 1852. The author does not understand the case of the State v. Keokuk (9 Iowa, 438, 1859), to deny, but rather to affirm, the power of the city to abandon the project of opening of a street any time before the property is taken; but the case holds that the city, while proceeding with the work, has no implied power to set aside the report of commissioners it had appointed, and to appoint new ones at discretion, "until the damages are brought to square" with its views. On this ground

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§ 474. Where proceedings are rightfully discontinued, the land owner cannot have a mandamus to collect, nor recover by action, the sum that may have been estimated by commissioners; yet he may have a special action for damages for any wrongful and injurious acts of the corporation in the course of the proceedings.' And it has been even held that if the municipality deems it best to abandon the proposed work or project, it may do so, and discontinue proceedings, although it may have taken possession of the premises. By taking such possession, it is argued, the corporation does not impliedly agree to purchase at the appraisement. It may, nevertheless, discontinue the proceedings, and the land owner can only demand the premises, and damages for being deprived of them, and for injuries thereto."

§ 475. Nor has the municipal corporation always been

the case is sustainable, and in accordance with settled principles and sound reason. It is not to be taken as holding that the land owner has a vested right to an assessment simply because one has been made. Power to set aside report and appoint new board, see Redfield on Railways, sec. 72, and notes Assessment made by commission must be approved or rejected by the court in toto; it cannot amend the report. Matter of Claiborne Street, 4 La. An. 7; Matter of Anthony Street, 20 Wend. 618; Simmons v. Mumford, 2 Rh. Is. 172; Clarke v. Newport, 5 Rh. Is. 333. Where a city has accepted and confirmed the report of commissioners to assess damages, it is concluded from withholding payment because of an alleged error. Higgins v. Chicago, 18 Ill. 276; Chicago v. Wheeler, 25 Ill. 478. Mandamus to enforce payment by sale of city bonds. Duncan v. Louisville, 8 Bush (Ky.) 97, 1871.

1 State v. Graves, 19 Md. 351, 1862; Milliard v. Lafayette, 5 La. Ann. 112, 1850; Roffignac Street, 4 Rob. (La.) 357; Canal Street, 11 Wend. (N. Y.) 155; Anthony Street, 20 Wend. 618; Walling . Mayor, 5 La. An. 660. Where a corporation commences proceedings to open a street, and notifies a proprietor not to contiuue the making of improvements he had begun, and the corporation needlessly delays and finally abandons the proceedings, it is, under these circumstances, liable for the actual damages suffered by the proprietor, arising from the suspension of his improvements. McLaughlin v. Municipality, 5 La. An. 504, 1850, distinguished from Millard v. Lafayette, Ib. 112: Graff v. Baltimore, 10 Md. 544, 1857. Mandamus held to be the remedy of the abutter for delay in completing street improvements. Whiting v. Boston, 106 Mass. 89, 1870. Such delay is no legal excuse for refusal to pay assessment. Ib.

? Hullen v. Municipality, 11 Rob. (La.) 97, 1845.

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considered as concluded and bound to pay the damages awarded, although the report of the commissioners appointed by it had been confirmed. The act to enable the city of Baltimore to procure a supply of water authorized the city to condemn lands, required the inquisition of damages to be returned to the circuit court, and provided that it should be confirmed by the said court at its next sitting, if no sufficient cause to the contrary be shown," and the "valuation when paid or tendered shall entitle the city to use the land as fully as if it had been conveyed by the owner.' It was held that the city was not bound by the mere inquisition of damages, although confirmed by the court, to pay the amount awarded, but could, nevertheless, abandon the location in question; that the judgment of confirmation simply decided the value of the land, and that payment or tender of the valuation is necessary to give the city a title to the property. It was admitted by the court, however, that if the owner suffered loss or injury by reason of the wrongful acts of the city, he might recover damages therefor.' But the language of the act or charter may be such as to give the land owner a right to the sum assessed, and to prevent the corporation from setting aside or discontinuing proceedings, as where it is provided "that after the value and damages shall have been ascertained, the amount, with interest, shall be paid to the person interested, on demand."

§ 476. If no appeal or other special remedy be given, it } has been very generally held that certiorari lies against a town or city corporation with respect to their proceedings in laying out, altering, or improving a street, and if invalid they will be set aside by the courts.' Adopting what it

1 Graff v. Baltimore, 10 Md. 544, 1857, approving Railroad Company v. Nesbit, 10 How. (U. S.) 395. See, also, as to private rights vesting, State . Clunet, 19 Md. 351, 1862.

S. C., 6 Ib. 1.

* Stafford v. Albany, 7 Johns. 541, 1811; See, post, chap. XXII.; ante, sec. 368. Also, State v. Wakely, 2 Nott & McCord, 410, 1820; State v. Cockrell, 2 Rich. Law, 6; Parks v. Boston, 8 Pick. 218. 1829; Preble v. Portland, 45 Maine, 241, 1858; Stone v. Boston, 2 Met. 220; Prigden v. Bannerman, 8 Jones (N. €.) 53; Baldwin v. Bangor, 36 Maine, 518; Gay v. Bradstreet, 39 Maine, 580;, Dwight v. Springfield, 4

regarded as the well established general doctrine, the Supreme Court of the United States have held that the federal circuit courts, sitting in equity, will not interfere, by injunction, or otherwise, with the proceedings and determinations of the municipal authorities in exercising the power to open streets, unless it becomes necessary, to prevent a multiplicity of suits, or irreparable injury, or unless the proceeding sought to be annulled or corrected is valid upon its face, and the alleged invalidity consists in matters to be proved by extrinsic evidence. There must be some recognized ground of equity jurisdiction, or equity will not interfere. If the proceedings are void, and do not cast a cloud upon the owner's title, he must resort to the ordinary legal remedies. If the municipal authorities have failed to follow the provisions of the charter, or have exceeded the jurisdiction which it confers, the remedy of the land owner for the

Gray, 107, 1855; Kingman v. County Commissioners, 6 Cush. 306; French 7. Commissioners, 12 Mich. 267; Inhabitants of Monterey v. County Com. missioners, 7 Cush. 394; Intendant v. Chandler, 6 Ala. 899, 1844; Ruhlman v. Commonwealth, 5 Binn. 26; Ex parte Tarlton, 2 Ala. 35, 1841; Swan v. Cumberland, 8 Gill (Md.) 150, 1849; Camden v. Mulford, 2 Dutch. (N. J.) 49; Dorchester v. Wentworth, 11 Fost. (N. H.) 451; State v. Stewart, 5 Strob. (S. C.) Law, 29; State v. Swift, 1 Hill (S. C.) 360; Myers v. Simms, 4 Iowa, 500; McCrory v. Griswold, 7 Iowa, 248; Spray v. Thompson, 9 Iowa, 500; Campau v. Detroit, 14 Mich. 276, 1866; Duffield v. Detroit, 15 Mich. 474. As to function of appeal and certiorari. People v. Brighton, 20 Mich. 57. Post, secs. 739-743.

So in Vermont it is held that the proceedings by the county court to lay out roads are not by the course of the common law, and can only be revised upon certiorari, or by writ of mandamus in the nature of a procedendo. Adams v. Newfane, 8 Vt. 271; Lyman v. Burlington, 22 Ib. 131; Woodstock v. Gallup, 28 Vt. (2 Wms.) 587, 1856, where Redfield, C. J., very fully considers the proper office of writs of certiorari and mandamus in the nature of a procedendo. The latter was deemed the more appropriate remedy where the inferior tribunal disposed of the case upon an incidental question, and not upon the merits. See Rand v. Townsend, 26 Vt. 670. When remedy of abutter is by certiorari, and when in equity. See, further, Whiting v. Boston, 106 Mass. 89; Jones v. Boston, 104 Mass. 461. Post, secs. 727-738. It is held in New York (People v. Mayor, 2 Hill, 9, 1841,) and Ohio (Dixon v. Cincinnati, 14 Ohio, 240, 1846) that certiorari will not lie in such cases unless given by statute, but the cases above referred to will show that the opposite opinion has been very generally adopted. See People v. Stillwell, 19 N. Y. 531.

review and correction of the proceedings is by certiorari, and not by bill in equity.'

1 Ewing o. St. Louis, 5 Wall. 413, 1866; Hannewinkle v. Georgetown, U. S. Sup. Court, December Term, 1872. In case first cited, the city of St. Louis had condemned a portion of the complainant's property for a street, and, assessed benefits and damages, and rendered judgment accordingly. The complainant filed a bill in the United States Circuit Court to enjoin the enforcement of the judgment, and also to obtain compensation for the property appropriated for the street. The bill set forth various grounds of alleged illegality in the proceedings, and a demurrer thereto was sustained. "Of these grounds for relief, the principal are," says Mr. Justice Field, giving the judgment of the Supreme Court, "that the proceedings were taken without notice to the complainant, or any appearance by him; that the notice provided by law was not published as required; that no provi sion was made for compensation for the property taken; that no power to render the judgment was vested in the mayor by the legislature or charter, and that the statute under which the proceedings purported to have been taken was repealed before the proceedings were completed. These grounds are, by the demurrer, admitted to be true, and being true, no reason exists upon which to justify the interposition of a court of equity." "The second object of the bill,-the obtaining of compensation for the property actually appropriated by the city,-falls with the first. If the proceedings for its appropriation were void, the title remains in the complainant, and he can resort [unless the legislature has required him to pursue a particular remedy] to the ordinary remedies afforded by law for the recovery of the possession of the real property wrongfully withheld, or for the redress of trespasses upon it." 5 Wall. 418, 419. Followed and approved. Anderson v. St. Louis, 47 Mo. 479, 486, 1871; distinguished, Leslie v. St. Louis, 47 Mo. 474; commented on, Coulson v. Portland, Deady, 481. The general subject is further treated in chap. XXII. post, secs. 737, 738, 740.

* *

Where the charter of a city, in conferring upon it the power of opening streets, gives to the parties considering themselves aggrieved by the proceedings an appeal to a court of competent jurisdiction, with a right to a jury trial, they should seek redress in that tribunal, and not, at least, ordinarily, by a bill in equity. Methodist Protestant Church . Baltimore, 6 Gill (Md.) 391, 1848; Dusseau v. Municipality, 6 La. An. 575; Stewart v. Baltimore, 7 Md. 500, 1855; Baltimore v. Clunet, 23 Md. 449, 1865. If an appeal is given, that course is proper for an aggrieved party to pursue; if he has no other remedy, he may have a certiorari, but not an injunction, unless on equitable grounds. State v. Wakely, 2 Nott & McCord, 410; State v. Cockrell, 2 Rich. (S. C.) Law, 6; Spray v. Thompson, 9 Iowa, 40; Ewing v. St. Louis, supra.

A municipal corporation will, on application of the owner, be enjoined from appropriating private property for the purpose of a street, until it complies with the law, by assessing and tendering damages to the owner. Lafayette v. Bush, 19 Ind. 326, 1862. Or securing them. Sower v. Phila