City of Meriden v. Ives

• Decision Date: 23 January 1974
• Citation: 345 A.2d 13,165 Conn. 768
• Court: Connecticut Supreme Court
• Parties: CITY OF MERIDEN v. Howard S. IVES, State Highway Commissioner (two cases).

Page 13

345 A.2d 13

165 Conn. 768

CITY OF MERIDEN v. Howard S. IVES, State Highway Commissioner (two cases).

Supreme Court of Connecticut.

Jan. 23, 1974.

Albert L. Coles, Bridgeport, with whom was Morton H. Greenblatt, Corp. Counsel, Meriden, for appellant (plaintiff) in each case.

William A. McQueeney, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (defendant) in each case.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

Pursuant to a stipulation, these two cases arising out of the partial condemnation of two public parks maintained by the city of Meriden were briefed and argued together. They are appeals from the action of the Hon. Patrick B. O'Sullivan, a state referee, who, exercising the powers of the Superior Court, rendered a deficiency judgment for the city in each case but refused to award severance damages. The main issue presented by the assignment of errors is whether the referee erred in refusing to consider the existence of severance damages to the remaining parcels of parkland.

In June, 1968, the city of Meriden maintained two adjacent municipal parks, City Park, containing 9.23 acres, and Brookside Park, containing 13.3 acres. The highway commissioner, acting pursuant to § 13a-73 of the General Statutes, condemned two acres of City Park and 2.15 acres of Brookside Park, and assessed damages for the two parcels taken. The city appealed from these assessments to the Superior Court, where the matters were referred to the Hon. Patrick B. O'Sullivan, a state referee. The plaintiff and the defendant both offered evidence as to the damages sustained by the city, measured by the difference in value of the parkland before and after the taking. In calculating the value of the parcels retained by the city, the witnesses for both the plaintiff and the defendant included severance damages. The referee, however, refused to apply the 'before and after' rule and instead assessed the value of the land actually taken. He awarded $95,000 as damages for the City Park taking, and $82,000 as damages for the Brookside Park taking.

The referee purported to base his determinations, in part, on the majority opinion in Winchester v. Cox, 129 Conn. 106, 26 A.2d 592, and on § 7-131j of the General Statutes. He concluded that municipal land restricted to park use has no monetary value because it has no market value, but that since any portion taken by the state is no longer restricted to park use, that portion does have a monetary value. He further concluded that there is no monetary damage to parkland not taken, since that land is still restricted to park use, and therefore refused to award severance damages.

Ordinarily, when land is taken in eminent domain proceedings, the owner is entitled to be paid just compensation. Conn.Const. art. 1, § 11. When the highway commissioner condemns land pursuant to General Statutes § 13a-73, he acts with the full authority of the state. Hiland v. Ives, 154 Conn. 683, 687, 228 A.2d 502. Section 13a-73(b) also requires that the owner of land taken by the highway commission 'shall be paid by the state for all damages.'

If the taking is partial, the usual measure of damages 'is 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.' Northeastern Gas Transmission Co. v. Ehrhorn, 145 Conn. 83, 86, 139 A.2d 53, 54; Gontarz v. Berlin, 154 Conn. 695, 697, 229 A.2d 29. In this way, any severance damages to the remaining tract are included. Thus, 'when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation . . . to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account.' United States v. Dickinson, 331 U.S. 745, 750, 67 S.Ct. 1382, 1386, 91 L.Ed. 1789, quoting from Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 42 L.Ed. 270; see also Connecticut Ry. & Lighting Co. v. Redevelopment Commission, 161 Conn. 234, 239, 287 A.2d 362; Hollister v. Cox, 130 Conn. 389, 34 A.2d 633; 4A Nichols, Eminent Domain (3d Ed.) § 14.2. 'Damage to the remainder area is generally measured by the depreciation in value of such remainder as a result of the taking. All damages, present or prospective, that are naturally or reasonably concomitant to the improvement to be made or the work to be constructed . . . must be assessed.' 4A Nichols, op. cit. § 14.21.

Historically, a different rule has prevailed as to land held by a municipality and maintained for a public purpose. Where 'property (is) held by a municipality in its governmental capacity, the legislature may in general exercise final authority over its use or disposition, and, if it decides to take land so held . . . for a public purpose, the municipality is ordinarily not entitled to compensation.' Winchester v. Cox, 129 Conn. 106, 110, 26 A.2d 592, 595; note, 56 A.L.R. 365; 4A Nichols, op. cit. § 14.24. A municipality acts in its governmental capacity when it holds and maintains a public park. Stradmore Development Corporation v. Board of Public Works, 164 Conn. 548, 551, 324 A.2d 919; Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d 659; Wincester v. Cox, supra.

In Winchester v. Cox, supra, this court rejected the historical rule that no compensation is payable when the state condemns municipal parkland. There, the highway commissioner took portions of two public parks maintained by the town for the purpose of improving a trunk line highway (p. 108, 26 A.2d 592). When the highway commissioner awarded damages of one dollar, the town appealed to the Superior Court and the matter was referred to a state referee. The referee found that as public parkland, the land taken had no value to the town, and that the town, therefore, suffered no damage from the taking. He found, however, 'that if the land were unrestricted as to its use the value of the tracts after the highway commissioner took a portion of them was reduced by $4,800.' Winchester v. Cox, supra, 109, 26 A.2d 594. The referee reached this figure by placing a value of $8100 on the two public parks before the taking, and a value of $3300 on the parkland retained by the town. A-173 Rec. & Briefs 447. The referee in Winchester thus followed the usual method of assessing damages for a partial taking of land. Gontarz v. Berlin, supra. The Superior Court, however, affirmed the award of one dollar in damages and the town appealed to this court.

This court held that under article 1, § 11, of the constitution of Connecticut, the state could not take municipal parkland without paying 'just compensation,' and that the nature of 'just compensation' was to be decided upon equitable principles. Winchester v. Cox, supra, 114, 26 A.2d 592. We approved the statement in In re Widening of Bagley Avenue, 248 Mich. 1, 5, 226 N.W. 688, to the effect that '(n)othing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred.' Winchester v. Cox, supra, 129 Conn. 115, 26 A.2d 597. Noting 'the outstanding fact' that the referee had found damages in the amount of $4800 'if the restriction to park uses be disregarded', we set aside the judgment and remanded the case with direction to render judgment in that amount. Winchester v. Cox, supra, 116-117, 26 A.2d 597. This money, we held, was to be used by the town 'only for proper park purposes.' Winchester v. Cox, supra, 115, 26 A.2d 592.

In Winchester v. Cox, supra, this court approved the use of the 'before and after' method of measuring demages for a partial taking and disregarded the restriction to park uses in circumstances not materially different from those existing in the cases now before us. If the parklands which the town of Winchester retained were damaged by the partial takings, it follows that severance...