Clark v. Cox.

Decision Date03 December 1947
Citation134 Conn. 226,56 A.2d 512
CourtConnecticut Supreme Court
PartiesCLARK et al. v. COX.

OPINION TEXT STARTS HERE

Appeal from Superior Court, New Haven County; Shea, Judge.

Proceeding on the appeal by Theodore R. Clark and others from an appraisal of damages and assessment of benefits by William J. Cox, Highway Commissioner who condemned land for highway purposes. Judgment was rendered for plaintiffs in accordance with report of referee to whom case was referred but interest on amount awarded from date of taking to date of judgment was disallowed, and plaintiffs appeal from the part of judgment disallowing interest.

Error and case remanded with directions.

Morris Tyler and Richard H. Bowerman, both of New Haven, for appellants.

Harry L. Brooks, Asst. Atty. Gen. (William L. Hadden, Atty. Gen., on the brief), for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

BROWN, Judge.

On July 14, 1944, the defendant state highway commissioner took certain portions of the plaintiffs' farm in Woodbridge for the layout and construction of a trunk line highway and assessed the benefits and damages therefor, pursuant to § 1528 of the General Statutes, as amended. The plaintiffs applied to the Superior Court for a reassessment. The defendant by his answer simply admitted the taking set forth in the complaint and denied the allegations of damage. Upon the sale issue so presented as to the amount of the plaintiffs' damage, in due course the action was referred to a state referee and he by his report reassessed the damage at $16,558.20. The plaintiffs moved for judgment in accord with the report together with interest from July 14, 1944. On January 11, 1947, the court rendered judgment accepting the report and adjudging $16,558.20 to be the amount due the plaintiffs for the taking, ruling that there was no basis for the allowance of interest thereon from July 14, 1944, the date of taking, to the date of judgment. The plaintiffs have appealed. As the court pointed out, there is no finding in the referee's report that the plaintiffs had been physically dispossessed of the land between July 14, 1944, and the date of judgment, and it is undisputed that they had not been dispossessed.

The question determinative of the appeal is whether, where the defendant has taken the plaintiffs' land pursuant to § 1528 and there is nothing in the record to show that the plaintiffs have been physically dispossessed, they are entitled to receive interest from the date of taking until the date of judgment as an element of the just compensation guaranteed by article first, § 11, of the Connecticut Constitution and the Fourteenth Amendment to the Constitution of the United States. See Chicago B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979. The action which the defendant took to acquire the easement for highway purposes in the plaintiffs' land involved an exercise of the state's power of eminent domain pursuant to the method prescribed by statute. Section 1528 among its other provisions authorizes the highway commissioner to take any land he may find necessary for the layout of a trunk line highway, provides that the state shall pay all damages resulting and requires the commissioner to file an assessment of damages and benefits with the clerk of the Superior Court in the county in which the land is located. It adds that, ‘at any time after such assessment shall have been made by said highway commissioner, the physical construction of such layout * * * or other improvement may be made.’ While § 199f of the 1941 Supplement provides for an application for a reassessment, it concludes with this provision: ‘The pendency of any such application for reassessment shall not prevent or delay the layout * * * or other improvement of any such highway.'

Under this procedure the taking of the land is complete when the assessment is filed with the clerk of the Superior Court. Kratochvil v. Cox, 129 Conn. 246, 251, 27 A.2d 382; Munson v. MacDonald, 113 Conn. 651, 657, 155 A. 910. This is so even though there be no physical taking, for, in the absence of specific provision otherwise in the statute, ‘when the taking for public use is by administrative order, ‘if the formal act of a responsible body is required to effect a taking, the filing of such order definitely fixes the time and extent of the taking’; when such formal act is not required, ‘the first actual authorized physical interference with the property affected marks the punctum temporis of the taking.’ 2 Nichols, Eminent Domain (2d Ed.) p. 1152.' Kaufman v. Valente, 115 Conn. 428, 433, 162 A. 693, 695. Therefore, ‘taking’ means the accomplishment of the legal step whereby the landowner's right of possession is terminated. Accordingly, the taking of the plaintiffs' land occurred on July 14, 1944, the date when the defendant's assessment was filed.

Since this taking was an exercise of the state's power of eminent domain, the plaintiffs' constitutional guaranties entitle them to just compensation as of the time of the taking. ‘Where land is taken by eminent domain, the principal sum becomes due and payable when the land is taken.’ Woodward v. City of New Haven, 107 Conn. 439, 441, 140 A. 814, 815. It is the value of the land as of that time which constitutes the basis of just compensation. In consequence of the delay in the payment of that sum to the plaintiffs and the termination of their right of possession by the filing of the assessment, they had, from July 14, 1944, until January 17, 1947, neither the legal right to the possession or use of their property nor the use of the money to which they were entitled for its taking. Just compensation must necessarily include compensation for the loss so sustained during this interval, for, as we have said, ‘It matters not whether the property * * * taken be regarded as the land condemned or the amount of assessed damages withheld for the condemnor's use * * *. In either aspect of the matter and in either event, the result will be the appropriation of private property without just compensation.’ Reiley v. City of Waterbury, 95 Conn. 226, 230, 111 A. 188, 189. The loss suffered during the interval referred to is as much an element of just compensation as is the value of the land itself as of the date of the taking.

No decision by this court calls for a different conclusion. The question whether compensation in the form of interest for this element of loss sustained by the owner should be awarded has been presented to this court under two different types of eminent domain statute. Under the first, where the condemnor was not entitled to possession until payment of damages was made or, in the event of an appeal, the amount of damages was finally determined, interest was not allowed. Bishop v. City of New Haven, 82 Conn. 51, 72 A. 646; Fox v. City of South Norwalk, 85 Conn. 237, 244, 82 A. 642; Keller v. City of Bridgeport, 101 Conn. 669, 127 A. 508; Reiley v. City of Waterbury, supra; Woodward v. City of New Haven, supra. Under the second, where, as in the instant case, the condemnor had the right of immediate possession upon performing certain acts, regardless of whether payment was postponed or the valuation was uncertain because of an appeal, interest was allowed in the case of Shannahan v. City of Waterbury, 63 Conn. 420, 28 A. 611. See Novogroski v. MacDonald, 4 Conn.Sup. 474. These decisions show that, under either type of statute, the time when the condemnor's right to possession accrued sets the time for the running of interest on the value, as determined, of the property taken. In other words, when interest has been denied it has not been because interest can be no part of just compensation but because the owner still had the right of possession and no payment for the property to be taken had yet become due.

New Haven Steam Saw Mill Co. v. City of New Haven, 72 Conn. 276, 44 A. 229, 609; Id., 72 Conn. 288, 44 A. 233, cited by the defendant as authority to the effect that no interest could be allowed until a liquidated amount had first been determined by the referee's report, is not in point. That was a proceeding claiming damages for a change of grade under a right conferred solely by statute and did not involve the constitutional guaranty applicable to the eminent domain proceeding in the present case. Tyler v. Town of Darien, 115 Conn. 611, 613, 162 A. 837; Bishop v. City of Meriden, 117 Conn. 499, 501, 169 A. 41. The defendant has also cited Town of Stamford v. Vuono, 108 Conn....

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    • United States
    • Connecticut Supreme Court
    • December 3, 1974
    ... ... We have further stated that for this reason, 'where the state takes the property no specific permission to sue it is necessary.' Anselmo v. Cox, 135 Conn. 78, 81, 60 A.2d 767, 769, cert. denied, 335 U.S. 859, 69 S.Ct. 132, 93 L.Ed. 405. It would unduly strain the tendons of the legal ... Slavitt v. ives,supra, 206, 303 A.2d 13; Carl Roessler, Inc. v. Ives, 156 Conn. 131, 139, 239 A.2d 538; Clark v. Cox, 134 Conn. 226, 228, 56 A.2d 512. But a taking may also occur in the so-called constitutional sense pursuant to article first, § 11, of the ... ...
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