Andrews v. Cox

• Decision Date: 10 January 1941
• Citation: 127 Conn. 455,17 A.2d 507
• Parties: ANDREWS v. COX, Highway Com'r.
• Court: Connecticut Supreme Court

17 A.2d 507

127 Conn. 455

ANDREWS v. COX, Highway Com'r.

Supreme Court of Errors of Connecticut.

January 10, 1941

Appeal from Superior Court, New Haven County; Alfred C. BALDWIN Judge.

Proceeding by Edward S. Andrews, who appealed to the Superior Court from an appraisal of damages and assessment of benefits by William J. Cox, Highway Commissioner, for the taking of a strip of land along the front of plaintiff's property. The matter was referred to a state referee, and from a judgment on his report, fixing the amount of damages, the defendant highway commissioner appeals.

Error and case remanded with direction.

Leo V. Gaffney, Asst. Atty. Gen., and Francis A Pallotti, Atty. Gen., for appellant.

James P. Sweeney, of Naugatuck, for appellee.

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

MALTBIE, Chief Justice.

The highway commissioner, proceeding under the authority of § 1528 of the General Statutes, filed with the clerk of the Superior Court an appraisal of damages for taking a strip of land along the front of the plaintiff's property for the purpose of widening a highway, and from that appraisal, the plaintiff appealed. On the remaining land of the plaintiff is a dwelling house. The matter was referred to a state referee, who made a report in which he made findings as to the amount of damages to which the plaintiff was entitled in the event that the court applied any one of three possible rules for measuring them. Omitting a reference to certain elements which were the same in all cases, the referee found that the plaintiff was entitled to ‘ 15% depreciation on the dwelling house by reason of the remote possibility of travel use up to the taking line nearest to the dwelling house, a total of $923,’ making the total damages on this basis $1,333; if, however, the state was to be regarded as having ‘ taken this strip of land for all highway purposes except that of actual travel upon it, thus eliminating the extreme possibility of travel use to its westerly taking line, the secondary damage to the appellant's dwelling house by reason of the taking would not exceed the sum of $100 instead of the $923 damage which that extreme possibility brings into existence’ ; but if the plaintiff was correct in his claim that it must be assumed that after the taking ‘ actual travel will extend to the taking line * * * the secondary damage to his house would be the cost of moving it back, which would be $2,000, and the other items of his damage remaining constant * * * his total damage would be $2,410.’ The trial court gave judgment fixing the damages as the last sum, $2,410, and the highway commissioner has appealed.

When a portion of a tract of land is taken the rule for estimating the damages to which the owner is entitled, in the absence of unusual circumstances (Town of Stamford v. Vuono, 108 Conn. 359, 370, 143 A. 245), is thoroughly settled; it is " the difference between the market value of the whole tract as it lay before the taking, and the market value of what remained of it thereafter and after the completion of the public improvement." Stock v. Cox, 125 Conn. 405, 418, 6 A.2d 346, 353. Generally speaking, market value is " the price that would in all probability-the probability being based upon the evidence in the case-result from fair negotiations, where the seller is willing to sell and the buyer desires to buy." Portland Silk Co. v. Middletown, 125 Conn. 172, 174, 4 A.2d 422, 423. From this it follows that in determining market values in awarding damages for land taken, it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land; Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; Sargent v. Inhabitants of Merrimac, 196 Mass. 171, 178, 81 N.E. 970, 11 L.R.A.N.S., 996, 124 Am.St.Rep. 528; 2 Lewis, Eminent Domain, 3d Ed., p. 1232; Orgel, Valuation under Eminent Domain, p. 192; unless, indeed, the considerations advanced are not a necessary, natural or proximate result of the taking. City of Meriden v. Zwalniski, 88 Conn. 427, 434, 91 A. 439; see Orgel, op. cit., p. 200. The determination of the damages to be paid requires the consideration of ‘ everything by which that value is legitimately affected’ ; Holley v. Torrington, 63 Conn. 426, 433, 28 A. 613; Platt v. Milford, 66 Conn. 320, 332, 34 A. 82, 84; but ‘ considerations that may not reasonably be held to affect market value are excluded.’ Olson v. United States, 292 U.S. 246, 256, 54 S.Ct. 704, 709, 78 L.Ed. 1236; 18 Am.Jur. 880.

The damages to be paid are to be determined as of the time of taking. Appeal of Phillips, 113 Conn. 40, 43, 154 A. 238; Fox v. South Norwalk, 85 Conn. 237, 243, 82 A. 642. When land is taken for a highway the public authorities, except as modified by statute, acquire ‘ the right to make any changes in the highway which the changing needs of traffic may thereafter render necessary, without compensation to the owner of the fee, thus it may alter its grade or the location of the traveled portion, or it may subject it to new and more burdensome uses, and may do any act necessary to accomplish these purposes.’ Tyler v. Darien, 115 Conn. 611, 613, 162 A. 837, 838. Consequently the damages for such a taking may, in a proper case, include those which will result in the future from the use of the land taken to a greater extent or in a way different from that immediately contemplated. To this general rule there is a statutory exception as regards changes of the grade of certain highways in the future. Section 1438 of the General Statutes provides that whenever the owner of land adjoining a public highway shall sustain special damage, or receive special benefits, to his property, by reason of any change in its grade or of excavations in it made in the process of repairing it ‘ by the town, city or borough, in which such highway may be situated, or by any corporation, whether acting by authority or direction of the public utilities commission or otherwise, such town, city, borough or corporation shall be liable to pay such owner the amount of such special damage and shall be entitled to receive from him the amount or value of such special benefits.’ The general rule that damages can be awarded for future changes in the use of land taken for a highway is qualified so far as that statute permits a recovery for subsequent changes of grade when they are made, but it has not been extended to apply to land taken by the highway commissioner, under § 1528. In such a proceeding as the one before us, therefore, damages for future changes in grade may in a proper case be taken into account.

The adaptability of the land remaining to the owner for use in view of the improvement to be made may be a proper element to be considered. New York, N.H. & H. R. Co. v. New Haven, 81 Conn. 581, 585, 71 A. 780; Campbell v. New Haven, 101 Conn. 173, 180, 125 A. 650; Alishausky v MacDonald, 117 Conn. 138, 142, 167 A. 96; Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346. So any expenses which are reasonably necessary to adapt the remaining land to use in view of changes to be made in the land taken may properly enter into the damages to be awarded. The statute concerning damages for change of grade uses the words ‘ special damages,’ and while it is recognized that these words are not technically correct, such expenses are regarded as falling within them. Platt v. Milford, 66 Conn. 320, 330, 34 A. 82; McGar v. Bristol, 71 Conn. 652, 655, 42 A. 1000; Pickles v. Ansonia, 76 Conn. 278, 281, 56 A. 552; Forbes v. Orange, 85 Conn. 255, 258,82 A. 559. The more accurate statement is, however, that such expenses are not recoverable as such but are evidence of elements in the decrease in market value, of which they may be an accurate measure. ‘ The certainty or probability of future expenditures on the property rendered necessary or desirable by the changed conditions resulting from the completion of the public improvement may affect the present value of the property after the improvement is completed, but they affect it only indirectly, and are not in themselves recoverable...