Conners v. City of New Haven

• Decision Date: 11 July 1924
• Citation: 101 Conn. 191,125 A. 375
• Court: Connecticut Supreme Court
• Parties: CONNERS v. CITY OF NEW HAVEN.

125 A. 375

101 Conn. 191

CONNERS v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 11, 1924

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Nellie Conners against the City of New Haven. From an adverse judgment, plaintiff appeals. No error.

Walter J. Walsh, of New Haven, for appellant.

George W. Crawford and Thomas R. Robinson, both of New Haven, for appellee.

HAINES, J.

The appellant claims that on the facts disclosed by the record the entire condemnation proceeding was void, and she predicates error on the part of the superior court in failing to sustain her claims in several particulars, briefly stated as follows: (a) That the town of Orange had an interest in the lands as a source of revenue from taxation, but was not made a party to the action or in any way notified or considered, so that damages and benefits were not assessed for all parties in interest as required by law, and (b) that the requirements of the charter of the City of New Haven as to the taking of lands by condemnation were not legally complied with in the following respects: (1) That the return made by the bureau of compensation to the department of public works did not state that an appropriation had been made to pay for the lands proposed to be taken; (2) that a survey of the lands was not " annexed" to the report of the department of public works made to the board of aldermen; (3) that the board of aldermen did not make it appear on the face of the proceedings that the necessary appropriation had been made to acquire the lands, and (4) that the records of the board of aldermen did not show a survey of the property.

On the 16th day of July, 1923, the board of aldermen passed an order for the taking of the land of the plaintiff in the town of Orange abutting on the old channel of West River so called, for public park purposes, awarding the plaintiff $850 therefor. This order was approved by the mayor on the 18th day of July, 1923, and written notice of the approval was given to and received by the plaintiff on the 2d day of August, 1923. The town of Orange was never made a party to the condemnation proceedings, nor was any notice given to that town of the proposed taking. The report of the bureau of compensation to the department of public works did not state that an appropriation had been made to pay for the land, but, before the report of the department of public works was acted upon by the board of aldermen, it was amended by adding the words " Appropriation available by bond issue."

The department of public works prepared a survey map and layout as required by the charter, which was filed and kept in the office of the city engineer, but it was not " annexed" to the report made to the board of aldermen. It is the practice in New Haven to file and keep all maps of streets, squares, and parks in the office of the city engineer. When the report of the department of public works to the board of aldermen was being considered, the survey map was presented to and examined by the committee of the board of aldermen to which the matter had been referred for public hearing and report, and the details were fully explained to the committee by the city engineer.

The city of New Haven was empowered by its charter to acquire lands, by condemnation proceedings if necessary, for purposes of a public park, and in pursuance thereof, instituted such proceedings against the land of the plaintiff. She was awarded $850 therefor and appealed to the superior court.

The appellant makes the preliminary claim of law that, " when land of an individual is taken in invitum for public use under the provisions of the positive law every requisite of the statute must be complied with, and this must appear on the face of the proceedings for taking the land" ; and " no rights in the petitioner's land can be acquired in condemnation proceedings under the charter, unless every requirement of the charter is complied with."

These are correct general statements of the law which obtains in this state. Crawford v. City of Bridgeport, 92 Conn 435, 103 A. 125; New Milford Water Co. v. Watson, 75 Conn. 237-242, 52 A. 947, 53 A. 57. In the latter case we said:

" No land could be so taken, nor any right to divert water from another's land gained, unless every step to that end prescribed in the charter was fully accomplished."

As to the failure to include the town of Orange in the proceedings in question: It must be borne in mind that the land was taken for the purposes of a public park under authority given by the state of Connecticut.

The city of New Haven is authorized--

" to procure by gift, purchase, lease, exchange or other contract, or by condemnation as herein elsewhere provided, real property, whether within or without the limits of the city of New Haven, for the purpose of providing public parks or the enlarging of existing parks. * * *"

In this respect and for this purpose, the city of New Haven was not acting for itself, but as an administrative tribunal only, and authorized thereto by the state of Connecticut, and the rights thus acquired inured to the benefit of the general public and not to the City of New Haven alone. Norwich Gas & Elec. Co. v. City of Norwich, 76 Conn. 573, 57 A. 746; State v. Suffield & Thompsonville Bridge Co., 81 Conn. 62, 70 A. 55; Hartford v. Maslen, 76 Conn. 611, 57 A. 740.

In the last-named case we said:

" * * * The control of public parks belongs primarily to the state. The authority which the common council or park commissioners of a city may exercise in the control and management of public parks is not derived from citizens of the municipality within the limits of which such parks are situated, but from the Legislature. Such parks are held, not for the sole use of the people of a particular municipality, but for the use of the general public which the Legislature represents. Municipalities, in controlling and managing such public parks, act as governmental agencies, exercising an authority delegated by the state, and are always subject to legislative control."

In its very nature, the right to take private property for public use is an " attribute of sovereignty," and all property within its jurisdiction is subject to this paramount right of the state to appropriate it to the public use when, in the opinion of the Legislature, the public good requires. The sole constitutional restriction upon this power is that just compensation shall be made. Const. Conn. art. 1. § 11.

The contention of the appellant is that the town of Orange " had an interest in this land" and that by condemning it, " the income of the town * * * was necessarily decreased."

The assumption is that the right to tax is an interest in the land which is taxed. But the right of taxation is not a property right. The entire property right in land rests with those who have (1) the right of occupation; (2) the right of excluding others; (3) the right of transfer; or (4) the right of testamentary disposition--one or all. Obviously none of these rests with the town of Orange.

" Property itself, in a legal sense, is nothing more than the exclusive right of possessing, enjoying and disposing of a thing." Chicago & W. Ind. Ry. Co. v. Englewood Conn. R. Co., 115 Ill. 375, 4 N.E. 249, 56 Am.Rep. 173.

On the other hand, the power to tax, like the power of eminent domain, is one of the ‘ attributes of sovereignty,’ inherent and necessary to the existence of every government, and the exercise of both powers--its mode, form, and extent--within...