Alderman v. Town of West Haven

• Decision Date: 09 June 1938
• Citation: 124 Conn. 391,200 A. 330
• Court: Connecticut Supreme Court
• Parties: ALDERMAN v. TOWN OF WEST HAVEN.

200 A. 330

124 Conn. 391

ALDERMAN v. TOWN OF WEST HAVEN.

Supreme Court of Errors of Connecticut.

June 9, 1938

Appeal from Superior Court, New Haven County; Edward J. Daly, Judge.

Action by Saul B. Alderman against the Town of West Haven for a declaratory judgment determining whether certain building lines were legally established, and for other relief. From a judgment for the defendant, the plaintiff appeals.

Error and judgment directed.

William T. Holleran, of New Haven, for appellant.

Walton E. Cronan, of New Haven, and Leon M. Gabriel, of West Haven for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

The plaintiff was the owner of a piece of land on the southeast corner of Campbell Avenue and Center Street in the town of West Haven. The face of the building on Center Street was some distance back of the property line. The plaintiff desired to make alterations in the building which would bring its face on Center Street out to the property line. He applied to the building inspector for a permit, which was refused on the sole ground that building lines had been established upon Center Street at that point and that the alteration proposed would encroach beyond the building line. Thereupon, the property owner brought this action asking for a declaratory judgment as to whether or not a building line had been legally established; and, if not, that a writ of mandamus be issued directing the building inspector to issue a permit for the alterations proposed.

It was admitted that the town of West Haven was organized pursuant to a special act approved June 24th, 1921, 18 Special Laws p. 1067, dividing the town of Orange and creating the town of West Haven. By the act of its creation West Haven was granted the powers and made subject to the duties of other towns in the State; and in addition was granted all the powers and made subject to all its obligations conferred by the General Assembly by any special act upon the town of Orange. By an act approved July 13th, 1911, 16 Special Laws, p. 304, the board of selectmen of the town of Orange was authorized to establish building lines. By an act approved June 6th, 1913, 16 Special Laws, p. 1160, it was provided that before the selectmen shall order, among other things, ‘ the establishment or alteration of any building line, said board shall hold a public hearing thereon, after giving notice thereof by filing a copy of the proposed order, with a notice of the time and place of hearing thereon, in the town clerk's office at least five days before said hearing and by causing a copy of said proposed order and notice to be left with or at the usual place of abode of the owner or owners of the property affected by said order if such owners are residents of the town of Orange, and if they are nonresidents by depositing a like copy in any post office in said town, postage prepaid, directed to such person or persons at their last known post office address.’ Section 1.

In the complaint it is alleged that on January 12th, 1920, there was filed in the town clerk's office of the town of Orange by the board of selectmen a notice of a public hearing to be held by the board in the town hall on January 16th, 1920, at 8 p. m. upon a proposed order for the establishment of a building line on both sides of Center Street. It was further alleged that the notice did not contain a copy of the proposed order and that a copy of the proposed order was not at any time filed in the town clerk's office; that on January 16th, 1920, a public hearing was held by the board of selectmen; and on January 23d, 1920, at a meeting of the board, building lines were claimed to have been established; and that the proposed addition to the plaintiff's building was within the area on Center Street included in the claimed building line and when the plaintiff on March 23d, 1937, applied to the building inspector of the town for a permit to alter his building, the building inspector refused to grant the permit for the sole reason that the erection of any structure within the claimed building line was prohibited.

All the allegations of the complaint were admitted, except that the notice did not contain a copy of the proposed order and that no copy of the proposed order was at any time filed in the town clerk's office. These facts, however, were found by the trial court and the finding in this respect is not in dispute in this appeal. By way of special defense, the defendant alleged (1) that the town had acquired an easement by prescription to the building line, (2) that the owners of property affected had received actual notice of the proposed order, and (3) that the establishment of the building line had been validated by an act of the Legislature appended in the footnote.^[1] In addition to the facts mentioned the trial court also found that the property in question was conveyed by the Orange Bank & Trust Co. to Abraham I. Lapides and Jessie Silver by warranty deed dated January 20th, 1920, and by these grantees to Adolph Perlroth by warranty deed dated May 16th, 1921, which contained a clause, ‘ Said premises are subject to * * * building lines if any established.’ Perlroth conveyed the property to Morris Romer by warranty deed, dated June 7th, 1921, containing a clause, ‘ Said premises are subject to * * * building lines if established.’ The plaintiff acquired the property by warranty deed from Romer dated June 8th, 1921, and containing this clause, ‘ Said first and second piece are also subject to build-lines, if established.’ Thereafter the premises went through several intermediate conveyances in none of which was a building line mentioned, and were reconveyed to the plaintiff by the Aldermen Realty Company on July 1st, 1935, without reference to a building line. The building line attempted to be established by the selectmen was eight feet from the southerly line of Center Street in front of the plaintiff's property. The plaintiff's building is located at an angle so that the north-westerly corner is six and one-half feet south of the claimed building line, and the northeasterly corner immediately south of it. A copy of the vote of the board of selectmen taken at its meeting January 23d, 1920, was filed with the town clerk January 26th, 1920.

The trial court concluded that the filing of the vote of the selectmen was notice of the establishment of the building line affecting the plaintiff's premises; that in addition thereto the clause in his deed from Romer and in the two prior deeds constituted notice to him of the claimed establishment of the building line; and that...