Birnbaum v. Ives, 146368

• Decision Date: 30 September 1968
• Docket Number: No. 146368,146368
• Citation: 249 A.2d 849,28 Conn.Supp. 68
• Court: Connecticut Superior Court
• Parties: Leonard P. BIRNBAUM et al. v. Howard S. IVES, Highway Commissioner.

Page 849

249 A.2d 849

28 Conn.Supp. 68

Leonard P. BIRNBAUM et al. v. Howard S. IVES, Highway Commissioner.

No. 146368.

Superior Court of Connecticut, Hartford County.

Sept. 30, 1968.

Ribicoff & Kotkin, Hartford, for plaintiffs.

Robert K. Killian, Atty. Gen., and Milton H. Richman and Arnold Sbarge, Asst. Attys. Gen., for defendant.

PARSKEY, Judge.

The subject property in this condemnation proceeding is located on the easterly side of Washington Street in the city of New Britain. It consists of an irregular piece of land, containing about 31,000 square feet, and a six-story building constructed of reinforced concrete. The defendant condemned the property for highway purposes and assessed damages at $257,300. The plaintiffs appealed from this assessment to the Superior Court and the matter was referred to a state referee, who reassessed damages at $102,000, allocating all of the damages to the land and none to the building. The plaintiffs moved under § 363 of the Practice Book for a rejection of the referee's report and a reference to another referee for a new trial, claiming, inter alia, that the referee had no authority under § 13a-76 of General Statutes to reduce an assessment of damages and that the referee's conclusion that the building was valueless was erroneous and improper.

I

The plan for acquisition of land for state highways by condemnation is spelled out in §§ 13a-73, 13a-74 and 13a-76 of the General Statutes. Where the assessments by the highway commissioner do not exceed $15,000, acceptance by the property owner is all that is required in order to authorize payment by the state comptroller. Assessments in excess of $15,000 must be approved as reasonable in amount by a state referee. Where the property owner appeals from an assessment, the application must be referred to a state referee for a reassessment of damages. It is apparent that the plan envisioned by these sections casts the state referee in the role of protector of the public interest, insuring that the public treasury shall not pay either more or less than just compensation to the property owner. Where the property owner and the highway commissioner fail to agree, the application is referred to a referee not for approval or rejection but for reassessment. In reassessing, the referee is not required to use the commissioner's assessment either as a floor or a ceiling; instead, he discharges his statutory obligation by arriving at his own figure of just compensation based on the evidence before him. The plaintiffs' claim that the referee had no authority to reduce the assessment is therefore without merit.

II

The crucial question involved in this case is whether there is any basis in the evidence for the referee's conclusion that the building on the subject property had no value. Just compensation means a fair equivalent in money for the property taken as nearly as its nature will permit. Town of Winchester v. Cox, 129 Conn. 106, 114, 26 A.2d 592. This fair equivalent in money, or, more appropriately, the fair market value, is a price which in fair negotiations a willing buyer and a willing seller could probably agree upon. DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 363, 161 A.2d 190. Common experience tells us that no seller would willingly sell and no buyer would expect...