Antman v. Connecticut Light & Power Co.

• Decision Date: 18 July 1933
• Citation: 117 Conn. 230,167 A. 715
• Parties: ANTMAN v. CONNECTICUT LIGHT & POWER CO.
• Court: Connecticut Supreme Court

167 A. 715

ANTMAN v. CONNECTICUT LIGHT & POWER CO.

Supreme Court of Errors of Connecticut.

July 18, 1933

Appeal from Superior Court, Litchfield County; Alfred C. Baldwin Frederick M. Peasley, Ernest A. Inglis, and Arthur F. Ells Judges.

Suit by Helen Antman to enjoin the Connecticut Light & Power Company from occupying premises claimed to have been taken by condemnation proceedings, brought to the superior court in Litchfield county. A motion to expunge was granted, Baldwin J.; the plaintiff then filed an amended complaint in two counts; a motion to expunge and make more specific was granted, Peasley, J.; and an amendment to the first count of the amended complaint was allowed, Englis, J.; a demurrer to the amended complaint was sustained, Ells, J.; and, the plaintiff refusing to plead further, judgment was entered in favor of the defendant, and appeal by the plaintiff.

No error.

Albert Levitt, of Washington, D. C., and J. Warren Upson and Nathaniel R. Bronson, both of Waterbury, for appellant.

William E. Thoms, of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

AVERY Judge.

The charter of the Connecticut Light & Power Company provides that it shall have power to take land necessary or convenient for certain corporate purposes, including the erection of transmission lines; and, if unable to agree with the landowner as to the price to be paid for an easement required, may apply to the superior court in the county in which the land is situated or to a judge of that court. Upon such application the court or judge is authorized to appoint three disinterested citizens and freeholders as a committee to view the premises, assess just damages, and file its report with the clerk of the superior court of the county. The applicable provisions of the charter are 18 Special Laws 1919, p. 106, § § 2 and 3, and 14 Special Laws 1905, p. 860, § 6.

It appears from the record that on July 23, 1930, the company brought an application to Judge Ells of the superior court setting forth that it was necessary and convenient for it to take and use, for the purposes of a transmission line, certain real estate described in the application, and asking for the appointment of a committee to assess the amount of damages arising by reason of the taking. After overruling a special defense interposed by the present plaintiff, Judge John Rufus Booth, on December 30, 1930, entered judgment appointing the committee. On June 18, 1931, the committee filed a report with the clerk of the superior court for Litchfield county assessing damages of $250 to the present plaintiff, and on July 6th she filed a remonstrance against the acceptance of the report. Later, on her motion that the court hear the remonstrance and for judgment thereon, it was ruled (Baldwin, J.) that the court had no power to hear the remonstrance, upon the ground that the company's charter prescribing the course of procedure contained no provision for a remonstrance or for reviewing the assessment. No appeal was taken from this decision, but instead the plaintiff brought the present action to enjoin the company from taking possession of the property.

The original complaint in this action set forth numerous allegations to the general effect that the provisions of the charter of the corporation under which the committee was appointed and acted are unconstitutional and void in that neither they nor the statutes provide for review of the acts of the committee or its report, and that therefore the proceedings pertaining to the committee and its doings were void, that the committee erred in its rulings and decisions in various respects specified, and that there has been no judicial determination of the issues as to such errors and irregularities as presented by the remonstrance which the court held it had no jurisdiction to entertain, and also that the defendant has charged excessive rates for electric current and sold electric appliances at retail and thereby forfeited its charter. The paragraphs covering these allegations were expunged on motion, as irrelevant and immaterial or as starting legal conclusions. The plaintiff thereafter filed a substitute complaint and by amendment procured the virtual reinstatement in the complaint of allegations of certain errors by the committee concerning evidence and matters of procedure.

The complaint as so amended was demurred to on the ground, principally, that the allegations of error in the acts or rulings of the committee do not constitute a cause of action available in the present case. The court (Ells, J.) sustained this demurrer, stating in the memorandum that the complaint " seeks to take the place of a remonstrance. In fact it seeks, not to correct the award but to annual the entire proceedings. It seeks to destroy the judgment from which it did not appeal. It does not allege fraud, prejudice, bad faith or incompetence on the part of the committee. I conclude that the allegations now left in the complaint are insufficient and incapable of supporting any of the relief demanded."

Error is assigned specifically in granting the motion to expunge as to the several paragraphs of the complaint and amended complaint and in sustaining the demurrer, but the assignments may be resolved into the basic determinative contentions that, because of the failure of the charter to provide procedure for review of the doings and award of the committee, it is void as depriving the landowner of due process of law; that the charter has become forfeited and void through acts of the corporation subsequent to its incorporation; and that the plaintiff is entitled to have the acts of the committee reviewed and the alleged forfeiture determined in this action.

The assignments pertaining to the motion to expunge from the original complaint are not available on this appeal. The voluntary filing of the substitute complaint operated as a withdrawal of the original, and thereafter the latter, though remaining in the files and constituting part of the history of the cause, can furnish no basis for a judgment, nor can any previous ruling upon it be made a subject of appeal. Lakitsch v. Brand, 99 Conn. 388, 369, 121 A. 865; Wooley v. Williams, 105 Conn. 671, 675, 136 A. 583; Allen v. Chase, 81 Conn. 474, 475, 71 A. 367; 40 C.J. 558, 581. The trial court granted a motion to expunge certain paragraphs of the substitute complaint. These paragraphs stated legal conclusions without facts to support them, and were therefore immaterial. Hewison v. New Haven, 34 Conn. 136, 138, 91 Am.Dec. 718; Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 A. 1017; Williams v. National Fruit Exchange, 95 Conn. 300, 307, 111 A. 197; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 480, 138 A. 483, 54 A.L.R. 361. Where such allegations constitute an attempt to set upon a separate cause of action or defense they are demurrable. Smith v. Furness (Conn.) 166 A. 759. Where, however, they are alleged as elements going to support a single cause of action, a motion to expunge is the proper remedy. General Statutes, § 5515; Seidler v. Burns, 84 Conn. 111, 113, 79 A. 53, 33 L.R.A. (N. S.) 291.

The only substantial matter properly before us upon this appeal is the court's action in sustaining the demurrer to the substitute complaint. The proceedings under the defendant's charter called for determination, first, as to the propriety of the taking of plaintiff's property and, should it be deemed proper, the appointment of a committee to assess just compensation for the property taken. Under our practice, as outlined in the cases hereafter cited, the power of the party seeking to condemn and the necessity and propriety of a taking are adjudicated and concluded by the judgment of the court or judge appointing a committee to assess the damages, and the remedy for an erroneous decision is by an appeal. The decision of Judge Booth appointing a committee was a final judgment from which an immediate appeal lay to this court. New York, N.H. & H. R. Co. v. Long, 69 Conn. 424, 437, 37 A. 1070; New Milford Water Co. v. Watson, 75 Conn. 237, 243, 52 A. 947, 53 A. 57; Connecticut College v. Alexander, 85 Conn. 602, 605, 84 A. 365, 366; Connecticut College v. Calvert, 87 Conn. 421, 88 A, 633, 48 L.R.A. (N. S.) 485. The present plaintiff did not appeal, and the questions raised or which might have been raised in that proceeding are no longer open to review. The judgment in the former action being between the same parties and upon the same cause of action is conclusive upon the parties to this suit as to every question which was or might have been presented and determined in the former action. Lehrman v. Prague, 115 Conn. 484, 490, 162 A. 15; Scott v. Scott, 83 Conn. 634, 638, 78 A. 314, 21 Ann.Cas. 965; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; Oklahoma v. Texas, 256 U.S. 70, 41 S.Ct. 420, 65 L.Ed. 831; The Haytian Republic, 154 U.S. 118, 14 S.Ct. 992, 38 L.Ed. 930; Burritt v. Belfy, 47 Conn. 323, 325, 36 Am.Rep. 79; Wildman v. Wildman, 70 Conn. 700, 710, 41 A. 1; Freeman's Appeal, 71 Conn. 708, 717, 43 A. 185.

The charter of the defendant makes no express provision for a review of the action of the committee appointed to assess the damages for the property taken. The right to a review by a court of the action of appraisers in condemnation proceedings is in accordance with the settled practice in this state from the earliest time in such and similar cases. We cannot ascribe to the Legislature, because it fails specifically to make provision in this charter for such a review, an intent to depart from this established practice. To paraphrase what we said in Miller v. Colonial Forestry Co., 73 Conn. 500, 505, 48 A. 98, we cannot attribute to the...