Eljay Realty Co. v. Argraves

• Decision Date: 23 January 1962
• Citation: 177 A.2d 677,149 Conn. 203
• Court: Connecticut Supreme Court
• Parties: The ELJAY REALTY COMPANY et al. v. Newman E. ARGRAVES, Highway Commissioner. Supreme Court of Errors of Connecticut

Page 677

177 A.2d 677

149 Conn. 203

The ELJAY REALTY COMPANY et al. v. Newman E. ARGRAVES, Highway Commissioner.

Supreme Court of Errors of Connecticut.

Jan. 23, 1962.

Julius B. Kuriansky, Stamford, for appellants (plaintiffs).

Milton H. Rickman, Asst. Atty. Gen., with whom were Jack Rubin, Asst. Atty. Gen., and, on the brief, Albert L. Coles, Atty. Gen., for appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

ALCORN, Associate Justice.

The named plaintiff, hereafter referred to as the plaintiff, owned fifty-one acres of land in Darien. It had purchased this land on April 14, 1953, for $39,000. About forty-five acres of the land was subject to a lease to Stamford Sand and Stone, Inc., hereafter referred to as the lessee. The lease was dated January 8, 1951, and was for a term ending on January 31, 1957. The leased portion of the premises was to be used solely for the purpose of excavating, processing and selling sand, stone and gravel. A weekly rental was to be computed at seventeen and one-half cents per cubic yard for all material excavated and sold during the preceding week with a proviso for a minimum monthly payment of $250. On February 6, 1956, the defendant, pursuant to § 13-145 of the General Statutes, took approximately thirty acres of the plaintiff's land in connection with the layout of the Connecticut turnpike and assessed the plaintiff's damages at one dollar. The plaintiff appealed to the Superior Court, and the case was referred to a state referee. After the plaintiff appealed, the defendant amended his certificate of condemnation and assessed the damages at $91,750. The lessee was allowed to file an intervening complaint in which it alleged that it had an interest in the appraisal of damages by virtue of its leasehold. The proportionate share, however, to which the lessee would be entitled, out of the total award, was not put in issue. See General Statutes §§ 48-21, 48-22. The referee found that the sand and gravel processing business was the 'highest and best use' to which the plaintiff's land could be put. He determined that the plaintiff was entitled to damages in the amount of $125,000 for the taking of its interest in the property, and the court rendered judgment accordingly. Both the plaintiff and the lessee have appealed.

In reaching his conclusion as to the plaintiff's damages, the referee took into account the lessee's net profit in operating its sand and gravel business but refused to consider the cost of disassembling, moving and reassembling the lessee's crushing plant, which was located on the premises. The referee's action in these two respects presents the issues on appeal.

The referee was called upon to determine 'all damages' which the plaintiff, as owner of the land, was entitled to recover as a result of the taking. General Statutes § 13-145. Such damages would be, in this case, 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 and after completion of the public improvement. Andrews v. Cox, 127 Conn. 455, 457, 17 A.2d 507; Stock v. Cox, 125 Conn. 405, 418, 6 A.2d 346. Market value, generally speaking, is defined as 'the price that would in all probability--the probability being based upon the evidence in the case--result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.' Harvey Textile Co. v. Hill, 135 Conn. 686, 688, 67 A.2d 851. Stated in another way, it is the price 'which, in fair negotiations, a willing buyer and a willing seller could probably agree upon.' DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 363, 161 A.2d 190. In the determination of this amount, it was proper to consider all the elements which legitimately affected the value of the land and which an owner and prospective purchaser could reasonably urge as factors influencing the fair price of it. Id., 147 Conn. 364, 161 A.2d 190; Harvey Textile Co. v. Hill, supra; Andrews v. Cox, supra, 127 Conn. 458, 17 A.2d 509. Among such factors would be the sand and gravel content of the land; Hollister v. Cox, 131 Conn. 523, 525, 41 A.2d 93, 156 A.L.R. 1412; that the best use of the property was for a sand and gravel processing business; and that the lease in effect on the property was for such a business, had about a year to run and produced an annual rental income to the owner of about $9300. The fact that the lessee would have the expense of taking down and removing its crushing plant, either at the termination of the lease or sooner if required by the condemnation, was not an item that could properly affect the market value of the plaintiff's land. The situation might be otherwise if the...