done and materials furnished by said Ben- | sion that the village will utilize, or sanction nett & Shepard in the construction of the the utilization by contractors of, the sewer, portion of the sewer already laid by them." which has been laid, the desire is to prevent The court decided that, by reason of the it and, as the result, have the village obtain illegality of the previous proposition submit- that much of its sewer system for nothing. ted to the village electors, the contract of [1] It is clear, and it has been so adjudg the village with Bennett & Shepard was ed, that Bennett & Shepard have no legal void; that they have no enforceable claim claim against the village based upon the parthereunder against the village growing out tial construction by them of the sewer. This of the partial performance of the contract; judgment did not invest them with any new that, upon the reincorporation of the village, claim upon that contract. That their conthe proposition, then, submitted and adopted tract was avoided was due to no fault on for the construction of a sewer system was their part; it was due to a technical defect legal and sufficient; and that the village on the part of the village authorities. They should not be restrained from the issue and had failed to observe a requirement of the sale of its bonds. The judgment, while re- General Village Law and, in consequence, straining the village and its officers from the subsequent contract was invalid and the recognizing as valid the original sewer con- contractors were left remediless as to work tracts, further ordered that its provisions done. Their freedom from fault, however, "shall not operate to prevent the letting of has nothing to do with the case. The quesnew contracts for the performance of the en- tion is not whether there has survived some tire work of constructing said sewer system obligation upon the contract; for any conby the said defendants Bennett & Shepard, | tractual relation created thereby must be reif they are the lowest responsible bidders garded as wholly annulled. under the new advertisement to be made for proposals to construct such work, and if such new contract shall be made with said defendants Bennett & Shepard, they may avail themselves of the work already done, so far as said work shall be in conformity to the plans and specifications adopted by the village for said sewer system; and that said foregoing provisions of this judgment shall not operate to prevent any contractor, to whom the new contract for the construction of said sewer system may be awarded, from obtaining by purchase, or otherwise, from the said defendants Bennett & Shepard the right to utilize pro tanto the work and materials already performed and furnished by them in said portion of said sewer system which they have constructed, if said work and materials shall conform to the plans and specifications adopted by said village for said sewer system."

The Appellate Division has affirmed the judgment of the Special Term by the unanimous vote of the justices, and but one of the questions which may have survived that affirmance demands our consideration upon this appeal. That question arises upon the clause just quoted from the judgment. It is the claim of the plaintiffs that the clause should be stricken out, in "so far as the same determines that the defendants Bennett & Shepard have any interest in the labor done and material placed in the streets of the village." They would prohibit Bennett & Shepard, if they were successful bidders under the proposals for the new contract, from availing themselves of the work already done under the previous invalid contract as a factor in the estimate of the cost of construction, or from agreeing with a successful bidder for taking over and utilizing the work and materials already done and furnished. Having ground for the apprehen

[2, 3] A new question has arisen, and that is whether, the present village of Waterloo having voted to construct a system of sewers according to the previously adopted plans and specifications, it may take possession, and make use, of the work and materials represented by the portion already constructed, and enrich itself by so much of a saving in the cost of the proposed improvement. Did not Bennett & Shepard have such property in the sewer work and materials, in the eye of the law, as, if appropriated by the village, to entitle them to recover the value measured by the cost of reproduction? How did the village acquire a right to the sewer? In the absence of proof, the presumption is that the fee of the village streets is in the abutting owners and the easement of the village in the public street gave it no title to this sewer, which had been constructed therein. The work done by the contractors had not been accepted by the village, nor paid for. Invalid as the contract may have been, it operated as a permit, or license, to the contractors, to that extent that they were not trespassers in what they did in the public street. No title to the sewer laid therein, however, passed to the village, and it subserved no street purpose. No question of relative rights of contractors and abutting owners is here. The sewer was not placed in land belonging to the village and the village had not acquired the title to it.

[4] But it does not follow in my opinion that, because with the falling of the contract there fell every obligation incurred thereunder by the village, if the work done should be subsequently utilized, the village should not pay for it; just as it might pay for anything requisite in the work of construction. That would be neither a waste of public moneys, nor wrongful to taxpayers.

It is a provision of section 262 of the Village, lieve it will afford a precedent for the easy Law (Consol. Laws 1909, c. 64) that: "If evasion of the safeguards enacted by law for the whole of the sewer system be construct- the protection of the public against the uned at the expense of the village and a sewer lawful acts of its officials. Whether the theretofore constructed wholly or partly at grounds on which the original contract beprivate expense be included in the map or tween Bennett & Shepard was held illegal plan of the system, the owners of the prop- and void were technical or not I do not erty * * * shall be entitled to reim-know. It is sufficient that the courts have bursement therefor." The village might held the contract illegal and void, and that make use of its easements in the streets by the contractors have acquiesced in that delaying sewers elsewhere than in this particu- cision. Nor do I concede that the contractors lar street; but, if it seeks to appropriate the were not at fault. On the contrary, they work done there, I know of no rule of law, were at fault because it is elementary law, nor principle of equity, which will fortify declared everywhere in this country, that the village authorities in the taking by them persons dealing with public officers must of Bennett & Shepard's property in the com- take notice of the powers conferred upon pleted portion of the sewer without compen- such officers by statute and the limitations sation. That has nothing to do with the imposed on the exercise of such powers. "A former contract. The cases, to which the person dealing with the agents of a municipal appellants refer, relate generally to actions corporation has no right to presume they are sought to be maintained upon the illegal acting within the line of their duty, but contract itself, or upon the theory of some must be careful to see that they are acting obligation to be implied therefrom, and they within the provision of the law which confers are not controlling. It is a principle of the authority upon them. Smith v. City of Newlaw that, where complete performance is burgh, 77 N. Y. 130, 137. See McDonald v. prevented by law, a recovery may be had for Mayor, etc., of N. Y., 68 N. Y. 23 [23 Am. benefits conferred by part performance, upon Rep. 144]. This brings us to the question the principle of the maxim that "no one whether the sewer placed in a village street shall be made rich by making another poor." under an illegal contract remained the propSuch a recovery would not be upon the basis erty of the contractors or became that of of the contract, which is invalidated, but the village. I insist that it became the propupon an implied agreement, founded upon a erty of the village. It is also elementary moral obligation to account for the moneys, law that structures permanently attached to or property, received. See Tracy v. Talmage, the land become part of the land. If the 14 N. Y. 162, 191, 67 Am. Dec. 132, and Cen-contractors had erected a town hall on land tral Transp. Co. v. Pullman's Palace Car of the village, under a void contract, the Co., 139 U. S. 24, 60, 11 Sup. Ct. 478, 35 L. building would belong to the village. It is Ed. 55. Although the contract of the parties sought to distinguish that case from the one failed and its agreement became of no force, before us because the fee of the street is might not the circumstances, subsequently presumptively in the abutting owners while arising, make it just that the contractors the village (in reality the public) has only should acquire a right and the village be the easement. That distinction does not subjected to a liability by virtue of a new justify the decision about to be made. Doubtand quasi-contractual relation? I think we less, an article affixed to the soil of the need go no further than to hold that the vil-street for the private use of the owner of lage could not appropriate and utilize the the soil does not by being so affixed become work and materials of Bennett & Shepard the property of the public. This is so of a without coming under an implied obligation horse block or a hitching post. But, equally to make compensation. It might abandon doubtless, where the constructions are made that portion of the plan without liability in a street in the exercise of the easement arising; but, if it does include the sewer work already completed, it takes what is not its property and the ordinary obligation at law will arise to pay for it. I think the learned justice, at the Special Term, was quite sound in his opinion that Bennett & Shepard should receive the advantage of the work done, if they obtain the new contract for sewer construction; or that they should be allowed to dispose of their interest in it to other contractors, if the work conformed to the requirements of the new contract.

For the reason assigned, I advise the affirmance of the judgment.

CULLEN, C. J. (dissenting). I dissent from the decision about to be made, as I be

the public has therein, which includes the
right to lay sewers, water pipes, etc., the
title to these structures vests in the public.
The case cannot be distinguished from a
pavement laid in the street, the title to
which, even if laid without authority, vests
in the public, and cannot be removed by the
person who laid it. No more could the con-
tractors enter upon the street, tear it up,
and remove the sewer. The, to me very
curious, suggestion is made that the village
must place the new sewer in another street
unless it buys the present sewer.
I had sup-
posed that the municipal authorities had the
right to construct a sewer in every street,
and a sewer in another street might be of
absolutely no benefit to the property owners

along this street. Since the village authori-, The cases cited to sustain that doctrine apties, before the making of the contract, had ply to private persons or corporations and the right to lay a sewer in this street, and to not to municipalities or public bodies. “But lay it in any part of the street proper for the claim is made that as the work and the purpose, how could the concededly illegal materials were furnished, and the village acts of the officers of the village in making has received some benefit from them, it is the contract impair or diminish the public under an implied obligation to pay what easement? It is said that the village author- they were worth. If this were so, the law ities have not accepted the work. That is could always be easily evaded; that it is true, and the reason it is not accepted is be- not so is no longer an open question in this cause the claims of the contractor have been court." Parr v. Village of Greenbush, 72 assigned to the village officials, or some of N. Y. 463, 472. The case is a hard one for them, who are thus interested in securing the contractor (or rather for the persons payment for the work. It is this very re- who have acquired an interest in his claim), fusal to accept the work, which is good as even though he has fallen into misfortune far as it goes, of which the taxpayer com- by his own carelessness in failing to see beplains and has a right to complain. fore executing the contract that the public The argument that the work thus far officers had complied with the requirements done subserves no public purpose is unfound- of the law. But he is not without a remedy. ed. It will subserve a public purpose when Though he cannot now maintain any action the rest of the sewer is completed. The in the courts, he may apply to the Legisla argument might just as well be made that ture, who, if his claim is equitable, may the mason work done in the construction of a recognize it and direct its payment. This town hall serves no public purpose because was the case in Wrought Iron Bridge Co. v. the building will not be habitable without the Town of Attica, 119 N. Y. 204, 23 N. E. 907. work of the carpenters and other mechanics. A bridge having been built under a void conThe work of the construction of the sewer tract, the contractor was defeated in an acmight have been let in several contracts tion on the contract; but, the claim having each embracing one part, as is the case in been ratified by the Legislature, it was subthe construction of the aqueduct for the city sequently allowed to recover. No one imagof New York. It would be idle to contend ined, however, that the contractor had the that the part of the tunnel constructed by right to remove the bridge or prevent the one contractor subserves no public purpose public from passing over it, a principle which because it cannot be used without the com- is held in the decision about to be made. pletion of the remainder. The principle that, The case does not fall within section 262 of where complete performance is prevented by the Village Law, which provides for the law, a recovery may be had for benefits con-payment of a sewer constructed wholly or ferred by part performance has no applica- partly at private expense. That has no aption to the case before us. The performance plication to a sewer assumed to be constructof this contract was not prevented by law; ed for the public and not for the use and at it never was authorized by law, and in the the expense of private parties. eye of the law was not the contract of the village, but the unauthorized and therefore personal acts of certain officals. Neither is the claim that the utilization of the work raised an implied agreement on the part of the village to pay for the work well founded.

WERNER, CHASE, COLLIN, CUDDEBACK, and MILLER, JJ., concur with GRAY, J. CULLEN, C. J., reads dissenting opinion.

Judgment affirmed, with costs.

[1, 2] The filing of a supplemental complaint is done under the authority of sec[Ed. Note.-For other cases, see Eminent Domain. Cent. Dig. §§ 551, 627-629, 700; Dec. tion 138 of the Civil Code (Acts 1881, p. 264; Dig. § 243.*] Burns 1908, § 408), which provides that:

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"The court may, on motion, allow supplemental pleadings, showing facts which occurred after the former pleadings were filed." Whether such a pleading may be filed rests in the sound discretion of the trial court, which may be invoked by oral motion. Section 2 of the Act of 1903 (Acts 1903, p. 338; Burns 1908, § 662), which provides "that every motion to insert new matter or to strike out any part or parts of any pleading, deposition, report, or other paper in the cause shall be made in writing and shall set forth the words sought to be inserted or stricken out," has no application to a motion for leave to file a supplemental pleading. The contention of appellant, therefore, that, because the motion for leave to file the supplemental complaint was not in writing, it was error to permit it to be filed, and to refuse to strike it out is without support.

[3] Nor is there anything in the substance of the supplemental complaint which establishes the correctness of the contention made in behalf of appellant that the court erred in refusing to strike it out or to set aside the submission and continue the cause. It in no sense changed the theory or nature of the cause of action set out in the original complaint. The complaint was filed while the work of reconstruction of appellant's road across appellees' lands was being carried out, and in it certain wrongful acts were alleged as being committed resulting in certain elements of damage. The supplemental complaint alleged the continuance of the same wrongs charged in the complaint and the completion of the work, and counted up on the same elements of damage as having been fully accomplished. Schmoe v. Cotton (1906) 167 Ind. 364, 79 N. E 184, and cases there cited.

the right of way so acquired from zero to about fifteen feet in depth, and the road was so constructed with a single track on the land appropriated. Thus was the railroad maintained and operated until 1906, when appellant, which had become the owner of the railroad, acquired by further condemnation an additional strip of appellees' land lying along the north line of its right of way, which strip was 20.5 feet wide for substantially half the distance through appellees' lands and 40.5 feet wide for the rest. In this latter proceeding appellant was also given the right to enter upon the adjoining premises of the appellees at a certain point for the purpose of deepening and widening a ditch which crossed the old right of way and to deepen and widen the ditch for a distance of about 400 feet south from the center line of the old right of way. The appropriation proceeding of 1906 was authorized by statutes which provide for the improvement of the line by local alterations. Sections 5195 (clause 7) 5247, and 5248, Burns 1908. In this proceeding appellant's complaint or instrument of appropriation showed the purpose of acquiring the additional land for its right of way to be to improve the line of railway by making local alterations by, among other things, cutings down grades and laying additional tracks, and they filed a map and profile showing the grades of the old track and new, and proposed cuts to be made in the process of lessening grades, to a maximum depth of 30 feet. For this second invasion of appellees' land compensation was awarded to them to the value of the land taken and of a further amount as damages to the residue caused by taking the part appropriated. The award was paid by appellant and accepted by appellees.

Following this second appropriation appellant's reconstruction work was carried out. The ditch was deepened and widened as contemplated, and grades were reduced by cuts to a maximum depth of about 30 feet, or about 15 feet deeper than the former cuts. This increased depth of cut was substantially all within the limits of the old right of way; the newly acquired ground being used for a part of the slope of the north side of the cut.

There is no vital difference between appellant and appellees over the facts involved in the case. But their controversy grows out of essentially different views of the law which should be applied to these facts, and the controversy is involved in several causes for a new trial which appellant contends the trial court erred in overruling. It appears that in 1869 appellant's predecessor acquired by appropriation proceedings under statutory authority a strip of ground 99 feet wide for a permanent right of way for a railroad through a large tract of ground now owned by appellees. The damages to the land occasioned by that appropriation were assessed and paid to the predecessors to appellees in the ownership of the land. At the time the instrument of appropriation was filed by ap-in increasing the cut thereon from 15 to 30 pellant's predecessor for the purpose of acquiring that strip of ground, it also filed in the office of the clerk of the circuit court a map and profile of the route intended to be adopted pursuant to the requirements of sec-|(2) injury by washing and falling of appeltion 5194, Burns 1908 (R. S. 1852, p. 409). The profile showed that the grade of the proposed railroad would require excavation on

Appellees' complaint sought compensation for the following elements of damage to their land which it was alleged resulted from this reconstruction work: (1) Excavating and removing great quantities of earth, rock, and gravel from the old right of way

feet in depth, to the amount of 60,000 cubic yards, and converting and using it for fills and embankments for appellant's roadbed at other places on appellees' or other lands;

lees' lands along the south side of the old right of way caused by the greater depth of the cut thereon; (3) injury by increased