Alemany v. Commissioner of Transp.

• Decision Date: 26 June 1990
• Docket Number: No. 13901,13901
• Court: Connecticut Supreme Court
• Parties: Joseph A. ALEMANY v. COMMISSIONER OF TRANSPORTATION.

Page 503

576 A.2d 503

215 Conn. 437

Joseph A. ALEMANY v. COMMISSIONER OF TRANSPORTATION.

No. 13901.

Supreme Court of Connecticut.

Argued April 4, 1990.

Decided June 26, 1990.

Frank W. Murphy, Norwalk, for appellant (plaintiff).

Robert T. Morrin, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellee (defendant).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The principal issue in this condemnation case is the availability of severance damages for the risk of losses that may arise from future use of a highway easement but which have not yet occurred at the time of the taking. The defendant, the commissioner of transportation, condemned an easement interest in a portion of the plaintiff's land in connection with the widening of United States Route 7. The defendant assessed damages in the amount of $7200, and filed a notice of condemnation with the Superior Court. The plaintiff, Joseph A. Alemany, brought an appeal for reassessment of damages in accordance with General Statutes § 13a-76. ¹ After a hearing, the Hon. Joseph J. Chernauskas, state trial referee, exercising the powers of the Superior Court, awarded the plaintiff an additional $2400 in compensation, plus interest and $4650 for appraisal fees. The plaintiff appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We reverse that portion of the judgment dealing with the assessment of damages.

The trial court found the following relevant facts, which are undisputed in this appeal. The plaintiff's property is located in Wilton at the intersection of Holleyhock Road and Route 7, known also as Danbury Road. The plaintiff's lot, which is nearly level and at street grade, contains approximately 8700 square feet. The lot has 80.53 feet of frontage on Danbury Road and 104.57 feet of frontage on Holleyhock Road. Also located on the premises is the plaintiff's two story wood frame commercial office building, which currently houses three offices. The plaintiff has twice renovated the structure since building it in 1973, and the court found it to be in good condition, with a remaining economic life of thirty years. Site improvements include a paved parking area, an illuminated sign, spotlights, fencing and landscaping. The property is served by public water and sewer systems, and is located near three major highways and a railroad.

Under the Wilton zoning regulations, the property, which is surrounded by strip commercial development, is located in a designated enterprise district, known as a DE-5 zone. Professional offices are a permissible use in a DE-5 zone, although the plaintiff's property conforms to neither the minimum five acre lot size nor the prohibition on front yard parking. Because the plaintiff's use of the property predated the DE-5 restrictions, however, the town approved a site plan for the current use with variances for both lot size and front yard parking. The approved site plan includes a landscaped buffer area separating the parking area from the highway.

The defendant condemned an easement "for highway purposes and its appurtenances" running along the entire length of the plaintiff's frontage on Route 7. The easement measures 84 feet in length on the easterly side and 80.53 feet on the westerly side, and varies in width from seven to nine feet. In total, the easement contains .02 acres, which represents 6.75 percent of the plaintiff's total usable land area. The current highway improvement project for which the easement was taken did not extend the travel portion of the highway to the easement area. The easement does cover the plaintiff's landscaped buffer area, however, and the Wilton town planner has opined that, in the event that the buffer is ever removed to facilitate the defendant's use of the easement, "the Town of Wilton would require that the 10-foot landscaped island be replaced on the property adjacent to the easement area." Replacing the buffer area in the plaintiff's adjacent property would, in turn, encroach upon the front yard parking area. Although neither the buffer area nor the sign had been moved by the time of trial, the defendant had requested the plaintiff to move the sign.

After hearing the testimony of the appraisers for both parties, the trial court found that the property was functioning in its highest and best use as professional office space, and that the property was developed to its maximum under the applicable land use regulations. With regard to the assessment of damages for the taking, the trial court rejected as unreliable the testimony of the plaintiff's expert witness, and instead adopted the approach of Arnold S. Tesh, an appraiser presented by the defendant. The court found, in accordance with Tesh's testimony, that the fair market value of the plaintiff's property, excluding the building, was $130,700 prior to the taking and $121,100 after the taking. Accordingly, the court ordered the defendant to pay damages in the amount of $9600. The court also ordered that the defendant pay interest on the damages, and $4650 for the plaintiff's appraisal fees. The court rejected, however, the plaintiff's request for reimbursement of the $750 fee charged by his appraiser for testifying in court.

The plaintiff challenges three aspects of the trial court's judgment. First, the plaintiff contends that the trial court's assessment of damages was inadequate due to its allegedly mistaken conclusion that the defendant condemned an easement, rather than a fee simple interest, in the subject property. Second, he challenges the trial court's determination that he was not entitled to severance damages because the current highway improvement project did not have a direct impact on the property outside of the easement area. Finally, the plaintiff contends that the trial court should have awarded him reimbursement for the $750 fee charged by his appraiser for testifying in court. ²

I

The plaintiff first contends that the trial court mistakenly concluded that the defendant condemned only an easement interest in his property. Emphasizing that the language of the notice of condemnation affords the defendant broad rights for the use of the property and contains no restriction on the duration of those rights, the plaintiff argues that the defendant actually acquired full fee simple title to the subject premises. Accordingly, the plaintiff contends, the trial court's assessment of damages must be revised to compensate for the forfeiture of the additional rights associated with fee simple title. We disagree.

An instrument conveying an interest in land conveys only that which is specifically expressed in the document. Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 441, 440 A.2d 935 (1981). The language of the notice of condemnation in this case is unambiguous in its description of the property at issue as an easement. As a general matter, the notice characterizes the property as "an easement for highway purposes and its appurtenances." In its more specific provisions, the notice states that the property is needed for "the layout, alteration, extension, widening, change of grade and improvement" of Route 7. Since the condemnation, by its terms, is limited to use of the property for highway purposes, the defendant can exercise no more rights over the property than those consistent with an easement. Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983). We have also previously held that, when the commissioner of transportation condemns property pursuant to the statute authorizing takings for highway improvements, the property acquired is an easement. Arborio v. Hartford Electric Light Co., 130 Conn. 592, 595, 36 A.2d 384 (1944); Kratochvil v. Cox, 129 Conn. 246, 249, 27 A.2d 382 (1942). ³

Moreover, the plaintiff has retained substantial beneficial rights to the property. Since the current highway improvement project has not extended the travel portion of the highway over the easement area, the plaintiff can make full use of the easement area for his own purposes, provided that those uses are not inconsistent with the defendant's easement. American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 74, 574 A.2d 796 (1990); Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974). The plaintiff could, for example, maintain his existing landscaped buffer area within the easement in order to ensure continuing compliance with the conditions of his zoning variances. The plaintiff also enjoys the prospect of reacquiring full and unencumbered title to the property in the event that the state abandons the highway. Ventres v. Farmington, 192 Conn. 663, 668-69 n. 3, 473 A.2d 1216 (1984); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 356, 114 A.2d 216 (1955).

We are also not persuaded that the absence of a limitation on the duration of the defendant's rights to use the property serves to create a fee simple interest. The plaintiff correctly states that the proper focus in determining the nature of the easement should not be the scope of the current highway improvement project, but rather the rights, both present and future, that the defendant has acquired. The fact that the notice of condemnation contains no temporal limitation on the defendant's rights does not, however, overcome the express limitation on the scope of the defendant's ability to use the property. We therefore conclude that the trial court correctly determined that the defendant condemned only an easement for highway purposes and that title to the fee simple interest remains in the plaintiff.

II

The plaintiff next challenges the trial court's refusal to grant severance damages for the taking. The plaintiff contends that, in assessing damages, the trial court mistakenly focused on the area within the designated easement and on the physical improvements...