Appeal of Phillips

• Decision Date: 06 April 1931
• Court: Connecticut Supreme Court
• Parties: Appeal of PHILLIPS.

154 A. 238

113 Conn. 40

Appeal of PHILLIPS.

Supreme Court of Errors of Connecticut.

April 6, 1931

Appeal from Court of Common Pleas, Hartford 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.

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

Roger Wolcott Davis, of Hartford, for respondent.

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

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 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 the moment the purchase is made, when credit is not specially agreed on. And if a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand, whilst they applied, the axe with the other." If after the land has been taken the city permits a portion of a building to stand beyond the street line, it is a matter of grace, and, unless its rights are lost by abandonment or otherwise, it may at any time thereafter remove or require the removal of that portion of the building without obligation to make further compensation to the owner. Shelton Co. v. Birmingham, 61 Conn. 518, 24 A. 978.

In 1862, and until some time subsequent to the erection of the building in question, the charter of the city gave its common council power to pass ordinances " regulating the mode of building or altering buildings within said city or any part thereof, and the mode of using any building therein." 5 Special Laws, p. 481. The appellant recites in her brief an ordinance of the city which she says was enacted under this charter provision and which, as it there appears, forbade any person to erect, add to, remove, or place any building without the consent of the court of common council. The existence and terms of this ordinance are not found by the committee, and we do not take judicial notice of the ordinances of cities. Young v. West Hartford, 111 Conn. 27, 31, 149 A. 205. But, even if we did, we would not be able to accept the contention of the appellant that, from its existence and the construction and maintenance of her building over the building line, a presumption of a valid location would arise. Permission to the then owner of the appellant's land to locate the building over the building line would be a grant to him of an individual privilege withheld from the other property owners across whose land the line runs and could hardly be regarded otherwise than as a violation of the constitutional guaranty against the denial to any person of the equal protection of the laws. Morton v. Holes, 17 N.D. 154, 158, 115 N.W. 256. Nor is it probable that the common council, having established a building line, would knowingly grant to any individual the right to build over it. Such a presumption as the appellant claims must rest upon general experience or probability, or else on policy and convenience, and in this instance neither the policy of the law nor reasonable probability can be invoked to sustain it. State v. Racskowski, 86 Conn. 677, 683, 86 A. 606, 45 L.R.A. (N. S.) 580, Ann.Cas. 1914B, 410; New York, N.H. & H. R. Co. v. Armstrong, 92 Conn. 349, 357, 102 A. 791.

The appellant further claims that, by the maintenance of the building over the building line from the time of its construction in 1882 until the present proceeding, a right to continue it in that location has come into existence. In Derby v. Alling, 40 Conn. 410, 436, we said: " There is no statute of limitations which as such is applicable to the case. The public could not be technically disseized, but public as well as private rights may be lost by unreasonable delay in asserting them. They may also be lost by an abandonment of them by those interested in their enforcement. Such abandonment may be inferred from circumstances or may be presumed from long continued neglect." See, also, Kent v. Pratt, 73 Conn 573, 581, 48 A. 418: Yale University v. New Haven, 104 Conn. 610, 619, ...