Bridgeport Hydraulic Co. v. Rempsen
| Decision Date | 09 June 1938 |
| Citation | 200 A. 348,124 Conn. 437 |
| Court | Connecticut Supreme Court |
| Parties | BRIDGEPORT HYDRAULIC CO. v. REMPSEN et al. |
Appeal from Superior Court, Fairfield County; Edward J. Quinlan Judge.
Action by the Bridgeport Hydraulic Company against Joseph J. Rempsen and others to condemn land for construction of a reservoir. From a judgment for plaintiff after overruling of a demurrer to the complaint, named defendant and others appeal.
No error.
Raymond E. Baldwin and J. Kenneth Bradley, both of Bridgeport, for appellants.
Philo C. Calhoun, Daniel F. Wheeler, and Arthur M. Marsh, all of Bridgeport, for appellee.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
The plaintiff, a private corporation specially chartered, brought this action to the Superior Court for Fairfield County seeking the appointment of appraisers to determine the amount to be paid by it for certain lands which it proposed to take for the construction of a reservoir. The defendants were the owners of the lands and persons who, it was alleged in the application, might claim interests in them. The application stated that the plaintiff was incorporated for the purpose of supplying the city of Bridgeport and other communities and their inhabitants with water for public and domestic uses that it deemed it expedient and necessary for its corporate purposes and the extension of its works to take the lands, and that it had been unable to agree with the owners as to the amounts to be paid therefor. The defendant owners filed a demurrer to the application which the trial court overruled and the substantial questions involved before us are presented by that decision.
The plaintiff by its charter is given power to supply water for private or public use in a certain designated territory and to lay pipes and construct and maintain reservoirs, canals and other works. It is authorized to take such land or waters or rights or interests therein ‘ as it may deem expedient or necessary for any of its corporate purposes,’ provided that where the law would require that compensation be made for property or interests taken the plaintiff is authorized to apply to the Superior Court, or any judge thereof in vacation, for the appointment of a committee to determine and award the amount to be paid for the lands or interests taken ‘ which determination and award shall be final and shall be returned to the clerk of the superior court, who shall record the same.’ 20 Special Laws, p. 398, § 11.
The charter under which the plaintiff operates was granted to it May 5th, 1927. The revision of the General Statutes of 1930 contained a statute, § 2541, which provides that municipal or private corporations authorized by law to supply water for public or domestic uses may take lands or waters or such rights or interests therein ‘ as the superior court, or any judge thereof in vacation, may, on application, deem necessary for the purposes of such supply.’ Section 622a of the Cumulative Supplement of 1931 adopted and enacted the revision of 1930. The defendants claim that the effect was to enact § 2541 of that revision as of a later time than the granting of the plaintiff's charter and impliedly to repeal the provisions of the charter concerning the taking of land. A similar claim was overruled by us in Board of Water Commissioners v. Johnson, 86 Conn. 151, 166, 84 A. 727, 41 L.R.A.N.S., 1024, where it was claimed that the same statute impliedly repealed the provisions of a special law previously enacted, authorizing a municipal board to take land for the purpose of a public water supply. We said that the claim was (page 732) That decision is controlling upon the question before us.
The defendants also contended under the demurrer, that the grant of authority to the plaintiff to take such land or waters as it might deem expedient or necessary for any of its corporate purposes, without any provision for a review of that determination in the courts is void because in conflict with constitutional provisions. A similar contention was carefully considered by this court in Board of Water Commissioners v. Johnson, supra, and we held that where the Legislature has not itself determined the necessity of the taking of certain property for a public use but has authorized some public or private corporation or individual to condemn such property as might be necessary for that use, the right of decision is vested primarily in the party to whom the power is granted, but that this decision is subject to judicial review to determine whether it was unreasonable or made in bad faith or in abuse of the power conferred. That decision has been followed in later cases. Board of Water Commissioners v. Manchester, 89 Conn. 671, 679, 96 A. 182; State v. McCook, 109 Conn. 621, 639, 147 A. 126, 64 A.L.R. 1453; Munson v. MacDonald, 113 Conn. 651, 656, 155 A. 910. In the Johnson Case we recognized that different courts had arrived at different conclusions as to the extent to which, if at all, the determination of a party to whom the Legislature had granted such power was subject to judicial review, and we carefully considered the decisions and chose the rule which we believed to be most sound. We see no reason to depart from the principles laid down in that decision. It was rendered in 1912, long before the charter under which the plaintiff is acting was granted. Whether, in view of the law announced in that case, the plaintiff should have been granted such power to take land or waters as is contained in its charter was a matter for the determination of the Legislature upon the basis of public policy.
As we pointed out in the Johnson Case, page 160, 84 A. page 730 the party to whom is delegated the right to determine whether particular land is necessary for a public use need only allege in his application to the court that he has so determined, leaving the burden of attack upon the adverse party. The Johnson Case, page 159, 84 A. page 730, contains a suggestion that the way to make such an attack is by an action to restrain the taking of the property. But we see no reason why, where application has been made to the court for the appointment of appraisers, the...
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