D'Addario v. Commissioner of Transp.

• Decision Date: 22 April 1980
• Citation: 429 A.2d 890,180 Conn. 355
• Parties: F. Francis D'ADDARIO et al. v. COMMISSIONER OF TRANSPORTATION.
• Court: Connecticut Supreme Court

Page 890

429 A.2d 890

180 Conn. 355

F. Francis D'ADDARIO et al. v. COMMISSIONER OF TRANSPORTATION.

Supreme Court of Connecticut.

Argued Jan. 11, 1980.

Decided April 22, 1980.

William A. McQueeney, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellant (defendant).

Frank W. Murphy, Norwalk, with whom, on the brief was Abraham D. Slavitt, Norwalk, for appellees (plaintiffs).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

PETERS, Associate Justice.

This is the second appeal by the defendant commissioner of transportation from the judgment of a state referee who, exercising the powers of the Superior Court, in accordance with General Statutes § 13a-76, reassessed the damages resulting from the condemnation of a portion of the property of the plaintiff, F. Francis D'Addario. The defendant has assigned error to the factual and legal conclusions that led the trial court to award damages in the amount of $65,700 and costs, and has challenged certain evidentiary and procedural rulings as well. The proceedings below were the result of a new trial ordered by this court upon the commissioner's first appeal. D'Addario v. Commissioner of Transportation, 172 Conn. 182, 374 A.2d 163 (1976) (hereinafter D'Addario I ).

The underlying facts are not in serious dispute and do not differ from those reported in D'Addario I : Prior to May 25, 1973, the plaintiff owned approximately 3.6 acres of undeveloped land in Fairfield. On that date, the defendant took from the plaintiff by way of eminent domain two drainage rights-of-way, amounting in all to 0.13 acres, and an easement to install a chain link fence in connection with a project to drain and relocate Turney's Creek so as to improve drainage in the surrounding area. The project involved the construction of three box culverts and considerable sanitary sewer work over an area about a mile in length, with most of the work involved lying outside of the area of the plaintiff's property. The construction of the entire project was to be performed in 780 days.

The plaintiff's property has legal access only to the King's Highway Cut-off, U.S. 1A, being otherwise effectively landlocked because of the elevation of surrounding property. Its legal access consisted of a driveway approximately sixty-five feet wide. The reconstruction of Turney's Creek involved the construction of a box culvert across this accessway to the plaintiff's land. During the period of construction, which was originally projected to take two years, and in fact took slightly longer, there was interference with the plaintiff's access to his property, although full and unrestricted access was thereafter restored.

The defendant in its original notice of taking assessed the plaintiff's damages at $3600. At the trial in 1974, the trial court reassessed the damages, finding the plaintiff entitled to $18,700 for the property actually taken, and to $34,500 for a two-year constructive easement for the deprivation of access to and use of his property. In the first appeal, the state did not contest the reassessment from $3600 to $18,700, but challenged the award for the constructive easement as inappropriate as a matter of law and unproven as a matter of fact. D'Addario I, supra, 184, 374 A.2d 163. Upholding the position of the state in part, this court held, D'Addario I, supra, 186, 374 A.2d 165, that "(b)ecause the court failed to find that the constructive easement was the foreseeable, necessary, natural and proximate result of the taking, and because the finding fails to support the damage award reached, the judgment cannot stand," and ordered a new trial. The order for a new trial necessarily implied that the plaintiff's claim to a constructive easement had been rejected as a matter of fact but not as a matter of law.

I

Before reaching the merits of the substantive issues raised by the new appeal, we will consider first the various evidentiary and procedural rulings that have been assigned as error by the defendant. The defendant argues that the trial court should have: (1) permitted introduction of evidence that the town of Fairfield was responsible for construction delays that contributed to the denial of access to the plaintiff's property and (2) permitted the defendant to cite in additional defendants, the town of Fairfield and the contractor Brunalli, and to consolidate actions against them, when their conduct contributed to the denial of access to the plaintiff's property. The trial court rejected these claims in the proceedings that led to D'Addario I, and rejected them again when they were renewed upon the retrial.

Since these various claims were assigned as error in the appeal in D'Addario I, it is arguable that this court's failure to address these claims in that opinion is tantamount to a conclusion that the rulings were correct, and have become part of the law of the case. Laurel, Inc. v. Commissioner of Transportation (Laurel II), 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917). Because the first judgment in the plaintiff's favor was set aside in D'Addario I ; cf. Laurel, Inc. v. Commissioner of Transportation (Laura III), 180 Conn. 11, 23, 428 A.2d 789 (1980); and because the opinion in D'Addario I does not expressly consider the claims on their merits it is preferable to deal with them directly on this appeal. We find all three claims to be groundless.

In essence, these evidentiary and procedural motions are all founded on the same proposition, that if there was interference with the plaintiff's access to his property, that interference was due, at least in part, to the conduct of third parties and hence was not the responsibility of the defendant. The trial court found, however, that all of the construction delays were attributable to contract specifications required by, and approved by, the state of Connecticut. Under these circumstances, neither the town of Fairfield, nor the contractor Brunalli, could have been made liable, under General Statutes § 52-102a, ¹ for any part of the plaintiff's claim against the defendant and consolidation was not required. The rulings of the trial court were well within its discretion. American Oil Co. v. Valenti, 179 Conn. 349, 360, 426 A.2d 305 (1979); Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1170 (1976); Rode v. Adley Express Co., 130 Conn. 274, 277, 33 A.2d 329 (1943).

The defendant also renews the argument, first raised in its appeal in D'Addario I, that the court had no jurisdiction to award damages for the constructive easement, because the taking certificate did not encompass such an easement and the amended appeal did not, in timely fashion, raise the issue, the amendment having been filed on August 6, 1974, more than six months after the taking date of May 25, 1973, in violation of the provisions of General Statutes § 13a-76. ² Although matters relating to proof of denial of access may not have been foreclosed by the decision in D'Addario I, the remand for a new trial on the facts could not have been ordered without an implied ruling that the matter was jurisdictionally appropriate for decision. Furthermore, the amendment of the pleadings suggested by the trial court in the original hearing was no more than an amplification of issues appropriately raised by the first count of the appeal which was itself timely filed. See Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 13, and cases there cited. The rulings by the trial court that permitted the amendment to the appeal were therefore well within its discretion. Wesson v. F.M. Heritage Co., 174 Conn. 236, 239-40, 386 A.2d 217 (1978); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291 (1974).

II

The substantive issue relating to the constructive easement that remained for retrial after D'Addario I can conveniently be divided into three sub-parts: (1) Did the taking by the defendant deprive the plaintiff of access to his property during the period of construction at Turney's Creek? (2) Was the interference with the plaintiff's access a foreseeable, necessary, natural and proximate result of the taking? (3) What are the damages that result from the taking? The trial court answered the first two questions in the affirmative, and reassessed damages in the amount of $65,700, of which $16,000 was attributed to the difference in the value of the property itself before and after the taking, and $49,700 was attributed to the deprivation of access. As in D'Addario I, the defendant does not contest the reassessment of damages from $3600 to $16,000, but does contest every aspect of the court's findings and conclusions as they relate to deprivation of access. It is noteworthy that these assignments of error challenge determinations that are essentially factual, in light of the holding in D'Addario I, and that the scope of our review is determined by the rule that the judgment of the trial court cannot be reversed or amended unless it is clearly erroneous in light of the evidence and the record as a whole. Practice Book, 1978, § 3060D. We find no basis in this record for reversal of the judgment of the trial court.

On the question of denial of access, the parties are in agreement, as the trial court found, that box culvert 201, one of the three box culverts involved in the Turney's Creek project, was constructed directly across the entire entranceway to the plaintiff's property. The defendant argues that access was nonetheless not denied the plaintiff because temporary access was maintained throughout the period of construction by means of temporary fill, as evidenced by the fact that the plaintiff's land was used, with the plaintiff's permission, by the contractor Brunalli as a place for storage of trucks and materials. The defendant also argues that the contractor had a legal obligation to provide continual legal access and was never asked by the...