Town of Branford Sewer Authority v. Williams

• Decision Date: 26 May 1970
• Citation: 159 Conn. 421,270 A.2d 546
• Court: Connecticut Supreme Court
• Parties: TOWN OF BRANFORD SEWER AUTHORITY v. Mary M. WILLIAMS, Administratrix (ESTATE of Frank F. WILLIAMS), et al.

Page 546

270 A.2d 546

159 Conn. 421

TOWN OF BRANFORD SEWER AUTHORITY v. Mary M. WILLIAMS, Administratrix (ESTATE of Frank F. WILLIAMS), et al.

Supreme Court of Connecticut.

May 26, 1970.

Nathan A. Resnik, New Haven, on the brief, for appellee (plaintiff).

Howard F. Zoarski, New Haven, on the brief, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

HOUSE, Associate Justice.

The plaintiff is a municipal sewer authority possessing powers of condemnation, granted by the provisions of § 7-247 of the General Statutes, for acquiring, constructing and operating a sewerage system in Branford. It brought a petition to the Superior Court alleging that it had deemed it necessary for the construction of a sewer line to acquire an easement through certain lands owned by the defendants and that it had unsuccessfully attempted to agree with the defendants upon the amount of damages arising from the taking, and praying that a committee of three disinterested persons be appointed to assess just damages to be paid by it on account of the taking.

By way of answer to the petition, the defendants admitted the existence of the eminent domain powers of the plaintiff but denied the allegations that the plaintiff had deemed acquisition of the easement to be necessary and that the plaintiff and the defendants had attempted to agree upon the amount of damages and had been unable to effect an agreement. By way of special defense, the defendants alleged that the action of the plaintiff 'under all the circumstances is so inequitable, unfair, unjust, discriminatory and unconscionable as to constitute an abusive (sic) power' on the part of the plaintiff and that the taking is 'unreasonable, unnecessary, arbitrary, capricious, discriminatory and illegal and constitutes the taking of the defendants' property without due process of law.' By way of an additional special defense, the defendants alleged that the action of the plaintiff was illegal because the plaintiff failed to comply with the provisions of § 8-24 of the General Statutes in that the proposal to locate and acquire land for the sewer was not first submitted to the Branford planning commission for a report. By way of affirmative relief, the defendants claimed an injunction restraining the plaintiff from any further action to acquire by condemnation any rights in the property of the defendants.

The case was tried to the court, which found the issues for the plaintiff and further found that the easement described in the complaint was necessary for the construction of the sewer line and that the plaintiff had been unable to agree with the defendants as to the price tob e paid for the easement, and adjudged 'that a committee of three disinterested persons be appointed' to make an appraisal of the damages resulting from the taking. From this judgment the defendants appealed.

The court filed a finding of facts and the conclusions which it reached. It concluded that the plaintiff had statutory authority to acquire and construct the sewer system; that the plaintiff had found that it was necessary to acquire an easement through the defendants' property because the contour of the land and underlying terrain in the adjoining street would have made it unduly costly and disruptive of traffic to excavate in the highway; that the parties attempted to agree on the amount of damages but were unable to effect an agreement; that the plaintiff had acted within its discretion and in performance of its legislative duty in acquiring the defendants' property for a public use and did not act arbitrarily or in abuse of its discretion; that it was reasonably necessary for the plaintiff to acquire the easement and that the plaintiff did not act in bad faith; that the plaintiff has complied with the requirements of § 8-24 of the General Statutes; and that the project was approved by the planning and zoning commission of the town of Branford.

The findings of fact from which the court reached these conclusions are set out in fifty-five paragraphs. In their assignments of error, the defendants have attacked sixteen of these paragraphs on the ground that they were found without evidence or in language of doubtful meaning. In addition, the defendants have assigned error in the refusal of the court to find facts as set forth in forty-nine paragraphs of the defendants' draft finding, which facts the defendants claim were material and were admitted or undisputed. The defendants have thus made what in effect is a wholesale attack on the finding of the trial court. We have repeatedly pointed out that attacks of this nature rarely produce any beneficial results. See Morrone v. Jose, 153 Conn. 275, 276, 216 A.2d 196, and cases cited. As this court said in Franks v. Lockwood, 146 Conn. 273, 275, 150 A.2d 215, '(i)n effect, the defendants by the wholesale manner in which they allege error and by the arguments advanced in their brief seek to have this court retry the issues. That is not our function. Trenchard v. Trenchard, 141 Conn. 627, 631, 109 A.2d 250. The wholesale attack on the finding tends to cloud the real issue and cast doubt on the merits of the defendants' claims. Anderson v. C. E. Hall & Sons, Inc., 131 Conn. 232, 236, 38 A.2d 787.'

We deem it unnecessary in this opinion to discuss seriatim the defendants' many assignments of error addressed to the court's finding of facts. It suffices to note that a fact is not admitted or undisputed merely because it has not been contradicted since the question of credibility is for the trier. Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430. As the...