Alishausky v. MacDonald

• Citation: 167 A. 96,117 Conn. 138
• Parties: ALISHAUSKY v. MacDONALD, State Highway Com'r.
• Decision Date: 27 June 1933
• Court: Connecticut Supreme Court

167 A. 96

117 Conn. 138

ALISHAUSKY v. MacDONALD, State Highway Com'r.

Supreme Court of Errors of Connecticut.

June 27, 1933

Appeal from Superior Court, Litchfield County; Ernest A. Inglis Judge.

Appeal by Casper Alishausky from an assessment of damages by John A MacDonald, State Highway Commissioner, for land taken for highway. Plaintiff's motion to recommit referee's report for further finding was denied, and the court sustained demurrer to plaintiff's remonstrance to the acceptance of the report, overruled the remonstrance, and entered judgment for amount recommended in the report, and plaintiff appeals, and moves for rectification of appeal.

No error, and motion for rectification of appeal denied.

Michael V. Blansfield and John E. Whalen, both of Waterbury for appellant.

Bernard A. Kosicki, Asst. Atty. Gen. (Warren B. Burrows, Atty. Gen., on the brief), for appellee.

MALTBIE, Chief Justice.

This is an appeal from an appraisal of damages made by the highway commissioner for the taking for highway purposes of certain land with the buildings thereon owned by the plaintiff, under the provisions of section 269a of the General Statutes, Cumulative Supplement 1931, and sections 1528 to 1531 of the Revision of 1930. The state referee, to whom the matter was referred, in his report, after reciting the preliminary steps taken in the proceeding and stating that he had viewed the premises, simply found that the plaintiff had sustained damages to a certain amount. The plaintiff filed a motion to recommit for certain additional findings by the referee. These requested additions fall into three classes: First, findings as to the amount which the plaintiff paid for the property when he purchased it in 1927, the amount he had spent to repair the buildings, the rental income, the cost of reproduction, and the uses to which the property could be put; second, summary statements of the evidence of various witnesses as to the value of the premises; and, third, certain claims of law the plaintiff alleged he had made to the referee. The plaintiff also filed a remonstrance based upon the neglect of the referee to state the same matters in his report. The trial court denied the motion and sustained a demurrer to the remonstrances, and from a judgment entered on the report the plaintiff has appealed.

The granting or denial of the motion to recommit was within the discretion of the trial court reviewable only for abuse. Fox v. South Norwalk, 85 Conn. 237, 240, 82 A. 642. The facts falling within the first class were, as the trial court pertinently observed in its memorandum of decision on the motion, evidential in their nature and would not necessarily affect the conclusion of the referee as to the damages to which the plaintiff was entitled, and the evidence summarized later in the motion discloses that the referee had before him the opinion of expert witnesses as to value which would amply sustain his conclusion. The addition to the report of the statement of this evidence would not be proper, for evidence has no place in the report of a referee. Practice Book, 1922. p. 264, § 98; Mathews v. Sheehan, 76 Conn. 654, 664, 57 A. 694, 100 Am.St.Rep. 1017. The rule of court just referred to makes it the duty of a committee to state such claims of law as were made by the parties and which either party desires to have determined by the court. This presupposes that the committee shall be informed before filing his report of the desire of a party to have his claims of law stated...