Appeal of Phillips

• Citation: 154 A. 238
• Court: Supreme Court of Connecticut
• Decision Date: 06 April 1931
• Parties: Appeal of PHILLIPS.

154 A. 238

Appeal of PHILLIPS.

Supreme Court of Errors of Connecticut.

April 6, 1931.

154 A. 239

Appeal from Court of Common Pleas, Hartlord County; Thomas J. Molloy, Judge.

Proceedings by the Board of Street Commissioners of the City of Hartford for an award of damages and assessment of benefits. From the judgment rendered on appeal by Minnie G. Phillips to the Court of Common Pleas entered in accordance with the finding as contained in the report, both parties appeal.

Error, and cause remanded, with directions.

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

Cyril Coleman and Lawrence A. Howard, both of Hartford, for appellant.

Roger Wolcott Davis, of Hartford, for respondent.

MALTBIE, C. J.

This is an appeal from an appraisal of damages and an assessment of benefits due to the widening of Windsor avenue, now North Main street, in the respondent city. The appeal was taken, under the charter of the city, to the judge of the court of common pleas for Hartford county, was referred to a committee, and from the judgment upon that report both parties have appealed to this court. In this opinion we shall speak of the appellant before the judge of the court of common pleas as the appellant here.

The appellant owns land abutting upon the west side of the street. In 1862 a building line was established by the city across the property fifteen feet back from the street line. About 1882 a building was erected upon the property, and still stands, which extends about five and sixty-nine hundredths feet over the building line. The improvement now in question consisted of the establishment of a new street line ten feet westerly of the old street line, so that the appellant's building now extends sixty-nine hundredths of a foot, over the street line. One of the appellant's claims was that she was entitled to damages based upon the cost of the reconstruction of the building which would be necessary to make it conform to the new street line, while the claim of the respondent was that no such damages should be awarded. The committee made its report as to the damages to be allowed in the alternative, according as one or the other of these claims should be upheld, and the judge of the court of common pleas upheld the respondent's contention and allowed no damages for the reconstruction of the building.

In so far as his decision was based upon the conclusion that, as the city had not ordered the removal of the portion of the building which encroached over the street line, no damages should be allowed, he was in error. The establishment of a new street line was a taking of the land between it and the old line. The appellant was entitled to damages measured by "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

154 A. 240

of the public improvement." Martin v. West Hartford, 93 Conn. 86, 88, 105 A. 342; McGrath v. Waterbury, 111 Conn. 237, 242, 149 A. 783. The cost of actually adapting the building to the new situation created by the change of the street line would not in itself be the measure of the damages, but merely one method of determining what those damages would be. Staite v. Smith, 95 Conn. 470, 473, 111 A. 799. It is the taking of the appellant's property by the widening of the street and not the fact of her adaptation of her building to the new line which determines her damages. McGrath v. Waterbury, supra, page 241 of 111 Conn., 149 A. 783; Hay v. Commonwealth, 183 Mass. 294, 67 N. E. 334. Such a proceeding, says Shaw, C. J., in Parks v. Boston, 32 Mass. (15 Pick.) 198, 208, "is not strictly speaking an action for damages; but rather a valuation or appraisement of an incumbrance created on the plaintiff's estate, for the use of the public. It is the purchase of a public easement, the consideration for which is settled by such appraisement only because the parties are unable to agree upon it. The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at...