Carl Roessler, Inc. v. Ives

• Decision Date: 09 February 1968
• Court: Connecticut Supreme Court
• Parties: CARL ROESSLER, INC. v. Howard S. IVES, Highway Commissioner.

Page 538

239 A.2d 538

156 Conn. 131

CARL ROESSLER, INC. v. Howard S. IVES, Highway Commissioner.

Supreme Court of Connecticut.

Feb. 9, 1968.

Robert G. Zanesky and Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for plaintiff.

Clement J. Kichuk, Asst. Atty. Gen., with whom, on the brief, were Harold M. Mulvey, Atty. Gen., and Jack Rubin, Asst. Atty. Gen., for defendant.

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

RYAN, Justice.

The plaintiff brought this action, seeking a declaratory judgment determining the respective rights of the parties following the filing by the defendant of an amended notice of condemnation which would reduce the original area of acquisition and which by its terms would require the plaintiff to accept a release of that portion or area by which the defendant desires to reduce his acquisition. Upon a stipulation of facts, the trial court reserved the questions presented for the advice of this court.

The parties have stipulated to the followings facts: The defendant, as highway commissioner, was authorized by §§ 13-145 and 13-120 of the 1958 Revision of the General Statutes to take property for highway purposes and to assess damages resulting therefrom. On February 9, 1962, pursuant to his statutory authority, the defendant filed with the clerk of the Superior Court for New Haven County a notice of condemnation and took, for the purpose of constructing interstate route 91, certain lands owned by the plaintiff. The notice described three parcels of land with a combined area of 0.47 of an acre, together with the buildings appurtenant thereto and including portions of other buildings standing on the plaintiff's remaining land. One of the buildings on the plaintiff's remaining land is referred to as 'the main processing and cooler building.' The defendant assessed damages for the taking in the sum of $240,200. The plaintiff, claiming to be aggrieved because of the inadequacy of the assessment of damages, appealed to the Superior Court, the action being returnable on the first Tuesday of July, 1962. In accordance with § 48-11 of the General Statutes, the sum of $240,200 was deposited with the clerk of the Superior Court, and thereafter, on July 13, 1962, disbursement of the sum to the plaintiff was ordered by the court. At this time, certain mortgages held by the New Haven Savings Bank, Anna Roessler and Fred Roessler, as set forth in the original notice filed in the Superior Court on February 9, 1962, were released as to the three parcels of land described in the notice. On July 8, 1962, the appeal was referred to a state referee to hear the evidence and report the facts to the court. The notice of condemnation indicated that the taking included the severance of a portion of the plaintiff's main processing and cooler building, and, on November 19, 1962, the defendant advised the plaintiff to vacate that portion of the building because the demolition division of the highway department was in the process of scheduling advertising dates for the construction of the highway in the area. On August 27, 1965, more than three and one-half years after the filing of the original notice of condemnation, the defendant filed with the clerk of the Superior Court and amended notice of condemnation and assessment of damages, made by him purportedly pursuant to Public Acts No. 309 and No. 310 of the 1965 February special session. These statutes which are now §§ 13a-73(b) and 13a-73(f) of the General Statutes, became effective June 18, 1965. The amended notice, which was filed without the consent of the plaintiff and without an order of court, revised the taking line, which resulted in a reduction of the taking area to 0.41 of an acre. It described three parcels of land and recited that all of the building which were located either totally or partially on parcel 1 and parcel 3 'have been demolished and removed, and * * * in view of the amended taking herein * * *, it will not be necessary to take, sever or interfere with, in any manner, any buildings or structure standing on owner's remaining land.' The damages to the plaintiff were reassessed at $115,900, and thereafter, the defendant made demand on the plaintiff to return the sum of $124,300, representing the difference between the amount of the original assessment and the amount of the amended assessment. On August 28, 1965, the defendant filed this amended certificate of taking in the office of the New Haven town clerk pursuant to § 13a-73(b) of the General Statutes, as amended in 1965, which provides that, upon the filing of the certificate the real property taken becomes vested in the state of Connecticut in fee simple. The plaintiff refused to return any money to the defendant and appealed to the Superior Court, claiming that the assessment of damages was inadequate and that the defendant had no authority to amend his original notice of condemnation and taking or to abandon it without the consent of the plaintiff. Both the plaintiff's original appeal for a reassessment of damages and its appeal from the defendant's amendment to the original notice of taking are still pending.

The questions upon which advice is desired are as follows: (1) Under the facts of this case, does the defendant, the state highway commissioner, have the authority and power to so amend the original 'notice of condemnation' and thereby reduce the area of acquisition originally intended to be acquired? (2) Can the defendant amend the original notice of condemnation after the pleadings have been closed and the matter referred to a state referee for a reassessment of damages without obtaining the consent of the plaintiff or without obtaining an order of court? (3) If the defendant has the right to amend, as set forth in questions 1 and 2, does the plaintiff have a cause of action against the defendant for damages resulting between the time of the original notice of condemnation and the time of the filing of the amended notice of condemnation?

The fundamental question before us is whether, on the facts of this case, the defendant may abandon a portion of the property condemned in his original notice of condemnation and require the plaintiff to return to the state a portion of the deposit disbursed to it under General Statutes § 48-11.

'In every form of procedure for appropriating land for the public use, there must be a point when the right of the condemnor to discontinue the proceedings is lost and the right of the owner of the land to the compensation becomes vested, but there are few principles of general application which determine the incidence of this point, and it depends largely upon the statutes and practice of the different states.

'As far as the constitutional rights of the condemnor are concerned, it would be competent for the legislature to provide that condemnation proceedings should not be discontinued after the first step had been taken, or it might be provided that the owner's right to the compensation should become absolute ay any later point in the proceedings, for a corporation (or the state) granted the power of eminent domain must take it with whatever conditions the legislature may choose to burden it. It is also well settled that so far as the rights of the owner of the property are concerned, eminent domain proceedings are, from their inception until the taking is complete, wholly within the control of the state which authorized them, and at any time during the pendency of the proceedings the condemnor may be permitted either to abandon the undertaking altogether, or to select a different location, and to give up all claim to the site which it had originally chosen and already started to take. On the other hand, once the land is actually taken, the owner is constitutionally entitled to be paid its value in money, and if the public improvement is abandoned before he is paid, the owner cannot be compelled to take back the property with damages for its detention only. There can be no discontinuance of the proceedings once the taking is complete. When the taking is complete is a question of substantive law depending upon the eminent domain procedure of each state. It must be remembered, however, that the punctum temporis when the taking is effected, while it marks the limit beyond which the right to discontinue the proceedings cannot constitutionally extend, is not necessarily the test of the expiration of the right, since the legislature may, if it sees fit, deny the right to discontinue at an earlier period, and the question is really one of determining the intention of the legislature, subject only to the aforementioned constitutional limit.' 6 Nichols, Eminent Domain (3d Ed.) § 26.42.

It is necessary to examine the statutes in effect at the time of the filing of the notice of condemnation by the defendant. Section 13-145 (Rev.1958) provided that the commissioner may 'take any land he finds necessary' for highway purposes and that the owner 'shall be paid by the state for all damages.' The assessment of damages 'shall be made by the highway commissioner and filed by him with the clerk of the superior court in the county in which the land affected is located.' It required the clerk to give notice to each owner of land affected and provided that 'at any time after such assessment has been made * * *, the physical construction of * * * (the highway) may be made.' It is obvious that this statute gave to the commissioner the right of immediate possession of the property condemned. Section 13-149 (Rev.1958) provided that the highway commissioner, within thirty days of the acceptance of any assessment or reassessment of damages by the landowner, or within thirty days of the final determination of any appeal taken as provided in § 13-150, shall file in the land records a certificate setting forth the details of the taking 'and, upon the filing of such description, title to such land in fee simple shall...