Hartford Nat. Bank & Trust Co. v. Redevelopment Agency of City of Bristol

• Decision Date: 07 February 1973
• Citation: 321 A.2d 469,164 Conn. 337
• Court: Connecticut Supreme Court
• Parties: HARTFORD NATIONAL BANK AND TRUST COMPANY, Trustee (ESTATE of Nettie E. ROCKWELL) v. REDEVELOPMENT AGENCY OF the CITY OF BRISTOL.

Page 469

321 A.2d 469

164 Conn. 337

HARTFORD NATIONAL BANK AND TRUST COMPANY, Trustee (ESTATE of Nettie E. ROCKWELL) v. REDEVELOPMENT AGENCY OF the CITY OF BRISTOL.

Supreme Court of Connecticut.

Feb. 7, 1973.

[164 Conn 338] Kenneth J. Laska, Plainville, for appellant (defendant).

Alfred V. Covello, Hartford, with whom, on the brief, was J. Harold Williams, Hartford, for appellee (plaintiff).

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

MacDONALD, Associate Justice.

In this appeal from a judgment awarding compensation for the taking through condemnation of a claimed interest in land, the sole issue presented concerns the valuation by a state referee of certain covenants restricting the use of land for the benefit of the plaintiff as trustee of a trust fund created under the will of Nettie E. Rockwell, late of the city of Bristol. Since the defendant failed to brief its assignments of error pertaining to the finding, they are treated as abandoned; State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495; State v. Benson, 153 Conn. 209, 217, 214 A.2d 903; and the facts as set forth in the finding are considered as undisputed.

The plaintiff the Hartford National Bank and Trust Company is the trustee under the will of Nettie E. Rockwell. Under the terms of the will, certain funds were left to the plaintiff in trust to be used according to the following directions contained in the will: 'In the event of the purchase of land lying west of the property formerly belonging to my late husband Albert F. Rockwell upon which is now located the Bristol High School between the Rockwell Memorial Boulevard on the north and South Street on the south and its purchase is deemed advisable by the City Council of Bristol, and the Bristol Board of Education, and the Board of Park Commissioners, my said trustee is hereby authorized and empowered to use a portion of the income or principal of this fund of Seventy-Five Thousand (75,000) Dollars for such purchase; provided that: in the event of the use of any of this fund in such purchase, the property acquired shall thereafter be restricted in perpetuity against the conduct of any mercantile or manufacturing business on the same, and that no building or part thereof shall be erected or maintained within thirty (30) feet of any highway adjoining the premises.'

During the years following the creation of this trust, the city of Bristol purchased four parcels of land known as lots 82, 83, 111 and 112, all of which were near or adjoined the Bristol high school and were within the area mentioned in Mrs. Rockwell's will. These lots have been used as part of the high school grounds. The four parcels were purchased from third parties with funds totaling $47,500 made available to the city of Bristol by the plaintiff out of the trust in accordance with its provisions. As consideration for the use of the trust funds to purchase these parcels, the city of Bristol covenanted and agreed with the plaintiff as trustee in a document entitled 'Agreement with the City of Bristol' (duly recorded in the Bristol land records in June, 1945) that it would abide by the restrictions in the trust. ¹

On December 19, 1968, the redevelopment agency of the city of Bristol, acting on behalf of the city of Bristol and pursuant to § 8-129 of the General Statutes, condemned the restrictive covenant created by the foregoing agreement and filed with the Superior Court a statement of compensation determining the amount of compensation to be paid to the plaintiff to be the sum of one dollar. As a result of the condemnation, the restrictive covenants were extinguished and the premises became qualified for industrial, commercial and apartment house uses under the Bristol zoning ordinances. On May 8, 1969, the plaintiff appealed from the statement of compensation, praying that the damages be reappraised and the matter was referred to Hon. Abraham S. Bordon, state referee, who heard evidence on the value of the restrictive covenants. The referee determined that the proper method of valuation was the difference between the value of the property with and without the restrictions in question. This difference was computed to be $37,180, and judgment was rendered for that amount less the one dollar deposited by the defendant, together with interest and appraisal fees.

The defendant redevelopment agency of the city of Bristol assigns as error the conclusion of the referee that the value of the restrictive covenants was the difference between the value of the affected property with and without the restrictions. Since the plaintiff was not an owner of land adjoining the restricted property the defendant argues that there was no actual loss to the plaintiff as a result of the condemnation although apparently it at least concedes that the restrictive covenants constitute an interest in property by admitting the allegation in the complaint that the plaintiff has an interest in the condemned land. In Stamford v. Vuono, 108 Conn. 359, at page 368, 143 A. 245, at page 249, this court held that when property subject to a restrictive covenant is taken for a public use the owner of the property for whose benefit the restriction is imposed is entitled to compensation, stating, that '(s)uch restrictions are in the nature of an easement constituting an interest in the land upon which they are imposed.' See 2 Nichols, Eminent Domain (3d Ed.) § 5.73, where such restrictions are characterized as 'equitable easements in the land restricted.' ² Here, however, there is no specific property owned by the trust for the benefit of which the restrictions are imposed, so that the restrictive covenants cannot be considered as creating an 'easement appurtenant' such as existed in Stamford v. Vuono, supra, and which has been defined as one which 'is created to benefit and does benefit the possessor of the land in his use of the land.' Restatement, 5 Property § 453. 'It must have been created to benefit the owner of it as the possessor of a particular tract of land.' Id., comment a.

On the other hand, it seems clear that what the restrictive covenants did create for the benefit of the plaintiff trustee is an easement in gross, which is defined as one which 'is not created to benefit or . . . does not benefit the possessor of any tract of land in his use of it as such possessor.' Restatement, 5 Property § 454. 'An easement in gross belongs to the owner of it independently of his ownership or possession of any specific land. Therefore, in contrast to an easement appurtenant, its ownership may be described as being personal to the owner of it.' Id., comment a; see Whitmier & Ferris Co. v. State, 12 A.D.2d 165, 209 N.Y.S.2d 247, holding the exclusive right to place advertising signs on a wall or fence to be an easement in gross for which the plaintiff advertising corporation was entitled to compensation when the land was taken by eminent domain. 'Depending on its period of duration, an easement in gross may be as an interest in land, either real property or a chattel real. Thus, if it is to endure indefinitely or for a period measured by the life of a human being, it is real property.' Restatement, 5 Property § 454, comment b.

It seems clear that the...