Hiland v. Ives

• Decision Date: 04 April 1967
• Citation: 154 Conn. 683,228 A.2d 502,35 ALR3d 1283
• Parties: , 35 A.L.R.3d 1285 Paige L. HILAND et al. v. Howard S. IVES, Highway Commissioner et al.
• Court: Connecticut Supreme Court

Page 502

228 A.2d 502

154 Conn. 683, 35 A.L.R.3d 1285

Paige L. HILAND et al. v. Howard S. IVES, Highway Commissioner et al.

Supreme Court of Connecticut.

April 4, 1967.

Kimberly B. Cheney, New Haven, with whom, on the brief, was Richard G. Bell, New Haven, for appellants (plaintiffs).

Jack Rubin, Asst. Atty. Gen., with whom, on the brief, was Harold M. Mulvey, Atty. Gen., for appellees (defendants).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

Hubbard Park, situated partly in the city of Meriden and partly in the town of Southington, is owned by the city of Meriden. It is composed of land which, between 1898 and 1901, was acquired by the city, to be used for park purposes, by gift, purchase or devise, although none of the conveyances contained a reverter provision.

The city, through its court of common council, accepted and dedicated the property as a public park to be known and designated as Hubbard Park. Thereafter, by No. 5 of the 1899 Special Acts of Connecticut (13 Spec. Laws No. 5, effective February 21, 1899), the charter of the city was amended to confirm and ratify the action of the common council in accepting and dedicating property as a public park, to create a board of park commissioners, and to authorize the city to own lands and structures for a public park or parks 'within or without the corporate limits' of the city. There can be no question that the city of Meriden was authorized by the General Assembly to establish, maintain and conduct the Hubbard Park property as a public park under the rule of cases such as Baker v. City of Norwalk, 152 Conn. 312, 315, 206 A.2d 428. See also note, 144 A.L.R. 486, supplementing prior annotations.

The defendant highway commissioner, hereinafter referred to as the defendant, intends to take about forty-seven acres of the total park acreage of about 1200 acres for the relocation and improvement of a state highway known as route 6A. Funds for the purpose were appropriated by the 1965 session of the General Assembly.

The basic claim of the plaintiffs is that the defendant lacks the statutory authority necessary for the taking of any part of Hubbard Park. Section 13a-73 of the General Statutes (Rev. to 1966) provides for the acquisition of land for state highways. Subdivision (b) of § 13a-73 provides that the highway commissioner 'may take any land he finds necessary for the layout, alteration, extension, widening, change of grade or improvement of any state highway' and provides for the payment of just compensation for the taking. It is obvious that the language of the statute is broad enough to embrace land held by either a public or a private owner and whether devoted to a public or a private use. In other words, the statute contains a general power of condemnation as distinguished from a specific power to condemn particular property.

Other statutory provisions, however, have imposed certain limitations on the apparent scope of § 13a-73. Thus, in subdivision (g) of that section there are certain further provisions which must be complied with if the property sought to be taken is owned by the state itself. In addition, § 7-131j of the General Statutes (Rev. to 1966) provides that '(i)f the state * * * takes any land, for highway * * * purposes, which is restricted to conservation or recreation use in accordance with an established open space program, * * * before the state takes such land for highway * * * purposes, it shall hold a public hearing'. Section 7-131j further provides that the state shall not take the land 'unless the governing body of the municipality in which the land is located has, by majority vote of all its members, approved the proposed taking'. There is a further provision that if within ninety days the governing body fails to give such approval, the state may apply to the Superior Court, which may order the taking if it finds 'that no land other than the land proposed to be taken will serve the purpose of such taking'.

There is no question under Connecticut law that the state has the inherent power of eminent domain, that this power extends to all property within its limits, at least unless the property is owned or used by the federal government, and that the state cannot permanently surrender this power. New York, H. & N.R. Co. v. Boston, H. & E.R. Co., 36 Conn. 196, 198. This principle is universally accepted. United States v. Carmack, 329 U.S. 230, 237, 67 S.Ct. 252, 91 L.Ed. 209; 11 McQuillin, Municipal Corporations (3d Ed. Rev. 1964) § 33.02, [154 Conn. 687] p. 267; 1 Nichols, Eminent Domain (3d Ed.Rev.1964) § 1.141(3), p. 28. Also, where the highway commissioner acts under authority, for the benefit, and on behalf, of the sovereign state itself, as was the case here, his action is that of the state itself. Colaluca v. Ives, 150 Conn. 521, 526, 191 A.2d 340; Town of Wincheser v. Cox, 129 Conn. 106, 113, 26 A.2d 592; see also Weaver v. Ives, 152 Conn. 586, 590, 210 A.2d 661; Murphy v. Ives, 151 Conn. 259, 261, 196 A.2d 596; Tuckel v. Argraves, 148 Conn. 355, 357, 170 A.2d 895.

All notice required by General Statutes (Rev. to 1966) § 7-131j were given, all hearings required by that statute were held, and the proposed taking was thereafter approved by a majority vote of all the members of the common council of Meriden, 1964) § 32.02, p. 267; 1 Nichols, Eminent city. The parties have assumed, and we think correctly, that Hubbard Park fell within the ambit of § 7-131j as an area 'which is restricted to conservation or recreation use in accordance with an established open space program'.

The fact that Hubbard Park was held for a public use under authority granted by the state, which was the case here, does not, of course, remove it from the state's sovereign power of eminent domain. Weaver v. Ives, supra; Winchester v. Cox, supra; New York, N.H. & H.R. Co. v. Offield, 77 Conn. 417, 421, 59 A. 510; s.c. 78 Conn. 1, 2, 60 A. 740, aff'd, 203 U.S. 372, 27 S.Ct. 72, 51 L.Ed. 231; Starr Burying Ground Assn. v. North Lane Cemetery Assn., 77 Conn. 83, 88, 90, 58 A. 467; Evergreen Cemetery Assn. v. City of New Haven, 43 Conn. 234, 242; New York, H. & N.R. Co. v. Boston, H. & E.R. Co., supra; note, 91 L.Ed. 221, 240 § V. The plaintiffs correctly agree that this is so.

The plaintiffs, although conceding that the paramount power of eminent domain is possessed by the sovereign state, and that it is to be exercised through authority granted by its General Assembly, claim that in this particular case the legislation is inadequate effectually to authorize an exercise of that power. This claim is basically a question of interpretation of the legislative grant of authority to exercise the right of eminent domain in the present case. The principal reason urged by the plaintiffs in support of their claim is that a general grant of the power of eminent domain does not confer the power to take land already devoted to a public use. This rule is one of statutory interpretation and is applicable when the condemnor is a municipal or private corporation to which the state has delegated a portion of its sovereign power of eminent domain. Canzonetti v. City of New Britain, 147 Conn. 478, 481, 162 A.2d 695; Starr Burying Ground Assn. v. North Lane Cemetery Assn., supra; Evergreen Cemetery Assn. v. New Haven, 43 Conn., supra, 241; note, 91 L.Ed. 221, 244 § VI, 250 § VI(c).

But the rule does not apply where the sovereign itself is the condemnor and is taking the property on its own behalf and for its own sovereign purposes. In 1 Nichols, op. cit. § 2.2, the distinction is well stated, as follows:

'In the determination of the question whether or not property already devoted to a public use can be subjected to the process of eminent domain the primary factor to be considered is the character of the condemnor.

'If the sovereign, such as the state or the United States on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the 'res' as public property, generally, has no inhibiting influence upon the exercise of the power.

'If, on the other hand, a condemnor to whom the power of eminent domain has been delegated, such as a municipality or a private corporation, seeks to exercise the power with respect to property already devoted to a public use, the general rule is that where the proposed use will either destroy such existing use or interfere with it to such an extent as is tantamount to destruction, the exercise of the power will be denied unless the legislature has authorized the acquisition either expressly or by necessary implication. Such an acquisition cannot be effected under a general delegation of the power of eminent domain from the legislature, unless it can be clearly inferred from the nature and situation of the proposed work, and from the impracticability of constructing it without encroaching on land already used by the public, that the legislature intended to authorize such property to be taken. The manner in which the property was originally acquired, whether by purchase, by eminent domain, or otherwise, has no bearing upon the operation of the general rule.' See also note, 91 L.Ed. 221, 244 § VI(a), 250 § VI(c); 11 McQuillin, Municipal Corporations (3d Ed.Rev.1964) § 32.72, p. 437.

The reason for the foregoing distinction in the applicable rules of statutory interpretation seems to be that it is not to be assumed, in the absence of a clear intention expressed or necessarily to be implied, that the sovereign, in delegating the power of eminent domain to a private or municipal corporation, intended to give the power to destroy a preexisting public use. But for this rule of statutory interpretation, one public use would be subject to destruction for another such use, even though the use of condemnor and that of condemnee had each been authorized by the sovereign. In other words, the matter becomes a question of the legislative...