Altman v. Hill
| Decision Date | 05 February 1957 |
| Citation | 129 A.2d 358,144 Conn. 233 |
| Court | Connecticut Supreme Court |
| Parties | J. Rodney ALTMAN v. G. Albert HILL, Highway Commissioner. Supreme Court of Errors of Connecticut |
Morris Robinson, So. Norwalk, for appellant (plaintiff).
Jack Rubin, Asst. Atty. Gen., with whom, on the brief, was John J. Bracken, Atty. Gen., for appellee (defendant).
Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.
The plaintiff appealed to the Superior Court from the action of the defendant in appraising damages in the sum of $5,000 for the taking of a part of his premises in the town of Norwalk for a trunk-line highway known as the Greenwich-Killingly Expressway. The matter was referred to a state referee for the reassessing of damages. The referee heard witnesses, viewed the property and filed a report in which he found that the fair market value of the property at the time of the taking was $4,500 and that the consequential damages to the plaintiff's house on the remaining land was $5,000. He assessed $9,500 total damages to the plaintiff. The court overruled the plaintiff's exceptions to the report, accepted it, and found the sum of $9,500 to be the fair amount of damages. The plaintiff has appealed to this court from the judgment rendered.
The following facts were found by the referee: The property taken is a three-acre piece, part of a ten-acre tract. As agreed by counsel, the title to the ten acres was in the plaintiff at the time of the taking, October 24, 1954, and the title to the seven acres remaining after the taking is now in the plaintiff and his brother, J. Leo Altman. The property taken is roughly pear-shaped and runs to a point on the south line of route 1. It is bounded on the west by Five Mile River, a considerable stream. The base line of the proposed expressway bisects the southerly portion of the three-acre piece. A substantial house was built by the plaintiff and his brother some years ago just south of what is now the southerly taking line. The three-acre piece is rolling land, covered by an almost impentrable jungle of vines and brush, with a few trees. About half of it is in a light industrial zone, and the balance is in a residential zone. There is no access to it from a public highway. The highest and best use of the entire ten-acre tract is for residential purposes, not for light industry. The plaintiff offered evidence as to its possible use for gravel mining in support of his claim that it was available for light industry and sought to prove that its value for gravel mining was $100,000. No test pits were dug. The exposed ground, as was shown by various cuts made in connection with the construction of the highway, did not appear to be gravel of even fair quality. It consisted mostly of boulders and pebbles. Development of the three-acre piece for light industrial use is obviously dependent on obtaining a right of way to a highway. This in turn, depends on securing a right of way over land in different ownership and on the willingness of the zoning or planning boards to grant the requisite permission to extend the light industry rating to the whole tract. There is no certainty that the boards would grant the petition or that the plaintiff's co-owner would agree to give a right of way. The obtaining of a right of access is surrounded by too many uncertainties to merit consideration. In view of the lack of sewers, water and access, the wild character of the land, the obvious expense and difficulty of making it available for residences, and the prices paid for similar land in the neighborhood which had street frontages, the value of the subject land at the time of taking was $4,500. The proposed expressway, under construction at this point, will pass quite close to the house, and the right of way will form a boundary of the remaining land. There was credible evidence, confirmed by observation, that this fact, not compensated for by any right of access to the new road, will result in a difference in value, before and after the taking, of $5,000 in the house alone.
In his first assignment of error, the plaintiff alleges that the court erred in refusing to strike from the report certain facts which, he claims, were found without evidence. He challenges the referee's findings that there was no access from a public highway, that the highest and best use of the land was for residential purposes, that the land was of a wild character, and that the expense and the difficulty of making it available for residences were obvious. He contends, also, that there was no evidence of the prices paid for similar land in the neighborhood with street frontages.
The referee's view of the land furnished evidence of its character, and that there would be expense and difficulty in making it available for residences, as truly as if that information had been presented by the lips of witnesses. Hollister v. Cox, 131 Conn. 523, 525, 41 A.2d 93, 156 A.L.R. 1412; G. F. Heublein, Inc., v. Board of Street Commissioners, 109 Conn. 212, 218, 146 A. 20. It appeared that the only means of access to the property was over Shady Brook Lane, a private road leading in from the public highway through property in a residential zone. A plaintiff's witness testified that the property taken had no frontage on any street, that the local zoning authority would not permit industrial use of Shady Brook Lane, since the entry to it was in a residential zone, and that no development of the land could be initiated before its entire layout was approved by the zoning authority, regardless of the regulations. A defendant's witness testified that the highest and best use of the land taken was for residential purposes. He stated, also, the prices paid for similar land in the neighborhood with street frontages, including a parcel sold by the plaintiff. The claim that the challenged facts were found without evidence has no merit.
In his second assignment of error, the plaintiff avers that the court erred in refusing to strike from the referee's report certain facts which he asserts were found without credible evidence. Section 173 of the Practice Book, which, as stated in § 179, governs the procedure where matters are referred to state...
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...as the evidence presented for his consideration by the witnesses under oath. They are in fact supplemental evidence. Altman v. Hill, 144 Conn. 233, 237, 129 A.2d 358; Hollister v. Cox, 131 Conn. 523, 525, 41 A.2d 93; G. F. Heublein, Inc. v. Street Commissioners, 109 Conn. 212, 218, 146 A. 2......
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