Hollister v. Cox

• Decision Date: 11 January 1945
• Court: Connecticut Supreme Court
• Parties: HOLLISTER v. COX, Highway Com'r.

131 Conn. 523

41 A.2d 93

HOLLISTER v. COX, Highway Com'r.

Supreme Court of Errors of Connecticut.

Jan. 11, 1945.

Appeal from Superior Court, Tolland County; Carl Foster, Referee.

Action by Charles W. Hollister against William J. Cox, Highway Commissioner, for damages for the taking of certain premises. From an award of damages, the plaintiff appealed to the Superior Court and the case was referred to state referee. Judgment for plaintiff on the report, and defendant appeals.

No error.

Leo V. Gaffney, of Hartford, and Francis A. Pallotti, Atty. Gen., for appellant.

Robert P. Butler, of Hartford, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

On November 26, 1941, the state condemned a strip of land belonging to the plaintiff in Mansfield and appraised his damages at $100. He appealed and had judgment for $2,400. The appeal was heard by a state referee whose report as corrected discloses the following facts: The property taken was part of a sixty-acre farm owned by the plaintiff. It consisted of a strip of land bounded on the west for 1136 feet by the highway and had an average depth of between 40 and 50 feet. It contained forty-eight hundredths of an acre. About five acres of the farm, bounding on the highway, were underlaid with a good quality of hard whitestone gravel suitable in its natural state for road building and other construction work. The plaintiff had used this tract as a gravel pit for some time. This was the normal and probable use to which the land should be put. The gravel was worth 25 cents per cubic yard. The premises were viewed. The value of the whole farm was diminished to the extent of $2,400; the value of the land taken was $2,400; and the plaintiff was entitled to damages in that sum.

The finding that the state appraised the land without regard to its gravel content has been eliminated from the foregoing statement as requested by the defendant. The evidence indicates that the appraisers testifying for the state did not regard the presence of gravel as substantially affecting the value of the land taken. This deletion from the finding does not materially affect the result. The evidence also shows that the use of the gravel in the construction of the road, another finding objected to by the defendant, was relevant and was considered only as bearing on the quality of the gravel.

The defendant sought to have a number of facts added to the report. These referred for the most part to sales claimed by it to be comparable. These additions went merely to the weight of the evidence and, if added, would not change the result. State v. Giant's Neck Land & Improvement Co., 118 Conn. 350, 354, 172 A. 861. Furthermore, they were evidential facts which had no place in the finding. Practice Book 1934, p. 106, § 360. There is credible evidence to support the report, and the subordinate facts support the conclusion. Information obtained by the view was evidence. Heublein, Inc., v. Street Commissioners, 109 Conn. 212, 218, 146 A. 20. The report must therefore stand unless there was error in the admission of testimony, Practice Book 1934, p. 63, § 173(d); or unless the method used in arriving at the result was wrong. Heublein, Inc., v. Street Commissioners, supra; Drouin v. Chelsea Silk Co., 122 Conn. 129, 132, 187 A. 904.

The rulings on evidence are not separately stated, as is desirable; see Practice Book, 1934, p. 105, § 359, p. 406, Form 645; State v. Giant's Neck Land & Improvement Co., supra, 118 Conn. 350, 356, 172 A. 861; Rogoff v. Southern New England Contractors Supply Co., Inc., 129 Conn. 687, 689, 31 A.2d 29; and they do not in all instances contain the answers to the questions objected to. Where the answer to the question does not appear, the remonstrance on its face does not show the effect of the ruling and exceptions of this type are not considered.

The remaining rulings fall into two groups. The objections in the first group were to evidence as to the value of the particular portion of land taken and to the inclusion in the questions of the fact that the portion taken contained valuable gravel deposits. The rule relied on by the defendant is stated in 1 Nichols, Law of Eminent Domain, 2d Ed., § 226, as follows: ‘When a tract of land taken by eminent domain contains ore, stone, coal, sand, gravel, peat, loam, oil or gas or other valuable deposits, which constitute part of the realty, or is covered with growing crops, or with trees capable of being converted into lumber, the existence of these features can be taken into...