Anselmo v. Cox

• Decision Date: 21 July 1948
• Citation: 60 A.2d 767,135 Conn. 78
• Court: Connecticut Supreme Court
• Parties: ANSELMO v. COX, Highway Com'r.

135 Conn. 78

60 A.2d 767

ANSELMO

v.COX, Highway Com'r.

Supreme Court of Errors of Connecticut.

July 21, 1948.

Appeal from Superior Court, Hartford County; Shea, Judge.

Action by Peter M. Anselmo against William J. Cox, Highway Commissioner, to recover damages for the total temporary taking of the right of access to plaintiff's property, brought to the superior court where a demurrer to the sbstituted complaint was sustained and plaintiff failed to plead further. From judgment for defendant, plaintiff appeals.

No error.

William J. Galvin, Jr., of Hartford, for appellant.

Bernard A. Kosicki, Asst. Atty. Gen. (William L. Hadden, Atty. Gen., on the brief), for appellee.

Before MALTBIE, C. J., and ELLS and DICKENSON, JJ.

BROWN, Judge.

The plaintiff brought this action against the state highway commissioner and others to recover damages for the total temporary taking of the right of access to his property. The highway commissioner, representing the state of Connecticut, interposed a demurrer to the substituted complaint. The parties and the trial court, in disposing of the issues raised by the demurrer, ignored technical defects and irregularities and dealt with the action as one solely against the state. We follow the same course. Cole v. Jerman, 77 Conn. 374, 382, 59 A. 425; Conn.App.Proc. §§ 23, 22, 21. Judgment was rendered upon the failure of the plaintiff to plead over after the demurrer was sustained, and the plaintiff has appealed.

The material allegations of the substituted complaint, admitted by the demurrer, may be thus summarized: The plaintiff owned a gasoline station and parking lot abutting southerly and westerly on Wells Street in Hartford and served by two driveways. From August 6, 1945, to November 15, 1945, the highway commissioner and others ‘by virtue of powers and authority vested in [them] by the State in regard to such highway matters,’ by using barricades and policemen, by digging up the entire highway in front of the plaintiff's premises and by creating large excavations and piles of material, took possession of the entire highway and completely shut off all access from the premises to the exclusion of the plaintiff and his customers. ‘These acts resulted in a taking (for the said period) of valuable property of the Plaintiff (i. e. the right of access to and from and into said highway) without just compensation,’ contrary to the state and federal constitutions. As a result, the plaintiff suffered a loss of trade and profits, and necessary expense. The highway commissioner and others have failed and refused to compensate the plaintiff for his damage.

In substance, the principal grounds of demurrer are: It does not appear that such a suit has been expressly authorized by statute or that the state has consented to the bringing of this action for damages against it; ‘if the alleged acts of the defendant * * * arose out of highway construction, there was no taking of property of the plaintiff and no payments of compensation were due to the plaintiff as a matter of law’; therefore the substituted complaint does not set forth a cause of action against the state. The court sustained the demurrer upon these grounds. In our discussion hereinafter, we shall refer to the state as the defendant.

In his brief, the plaintiff expressly concedes that ‘the defendant had the legal power to do what it did’ but claims that it ‘failed in its commensurate duty, as required by the state and federal constitutions, to pay just compensation for this complete but temporary taking,’ for a public use, of his property right of access. Hooker v. New Haven & Northampton Co., 14 Conn. 146, 159, 36 Am.Dec. 477. The plaintiff does not question the established law that the state cannot be sued without its consent. State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028, 129 Am.St.Rep. 205; State v. Anderson, 82 Conn. 392, 394, 73 A. 751; 49 Am.Jur. 301, § 91, and 304, § 92; 59 C.J. 300. Nor does he claim that there is any statute which either provides for an owner's realizing compensation under such circumstances or permits the bringing of an action against the state for damages therefor. He rests his argument upon the proposition that the provision of § 11, of article first of the constitution of Connecticut that ‘the property of no person shall be taken for public use, without just compensation therefor’ is self-executing and that no further specific permission to sue the state is necessary. The following statement by this court is relied upon as explicit authority: ‘The legislation on which the defendant relies in the case at bar makes no direct provision for compensation for property taken. The constitution does, and that is enough.’ McKeon v. New York, N. H. & H. R. Co., 75 Conn. 343, 348, 53 A. 656, 657, 61 L.R.A. 736. Two propositions are essentially involved in the plaintiff's argument: (a) In view of the constitutional provision referred to, no statutory provision is necessary to entitle one to recover compensation; (b) from this it results that where the state takes the property no specific permission to sue it is necessary. The language quoted above from our opinion in the McKeon case referred to a situation distinguishable from that in the present case in that there the defendant railroad, as we pointed out, ‘[was] not in the position of an ordinary agent of the state, selected to construct a public work, in which such agent has no personal interest. Its railroad served both public and private uses.’ Furthermore, it was operating under a charter which authorized it to take real estate but required it to pay all damages arising from such taking. The statement first quoted does, however, afford support for proposition (a) above, which is also supported by these authorities: County of Chester v. Brower, 117 Pa. 647, 656, 12 A. 577, 2 Am.St.Rep. 713; Hooker v. New Haven & Northampton Co., 14 Conn. 146, 158, 36 Am.Dec. 477; Hot Springs R. Co. v. Williamson, 136 U.S. 121, 129, 10 S.Ct. 955, 34 L.Ed. 355. The following are authority for proposition (a) and also for proposition (b): Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 493, 497, 157 S.E. 842, and cases cited; Rose v. State of California, 19 Cal.2d 713, 720, 123 P.2d 505; Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142, 96 A.L.R. 1. If we assume for the purposes of this decision that this case falls within the rule adopted in the three cases last cited, the question decisive of this appeal is whether the defendant's conduct in depriving the plaintiff of his right of access amounted to a taking in the constitutional sense.

It is clear from the allegations in the plaintiff's complaint that the only conduct of the defendant claimed to have constituted a taking consisted of acts done lawfully, incident to the proper exercise of its power and duty to provide and maintain the public highways. Furthermore, in so far as appears, these acts of the defendant, done in the discharge of this governmental duty, concerned solely a preexisting highway...