Housing Authority of City of Bridgeport v. Lustig

• Decision Date: 17 June 1952
• Citation: 139 Conn. 73,90 A.2d 169
• Parties: HOUSING AUTHORITY OF CITY OF BRIDGEPORT v. LUSTIG et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 169

90 A.2d 169

139 Conn. 73

HOUSING AUTHORITY OF CITY OF BRIDGEPORT v. LUSTIG et al.

Supreme Court of Errors of Connecticut.

June 17, 1952.

George A. Saden, Bridgeport, with whom, on the brief, was Frank Habansky, Bridgeport, for the appellant (plaintiff).

James C. Shannon, Bridgeport, with whom, on the brief were Max Frauwirth and Harold Sobel, Bridgeport, for the appellee (named defendant).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Associate Justice.

This is a proceeding brought pursuant to §§ 932 and 7181 of the General Statutes to condemn property of the named defendant for the purposes of the plaintiff. The committee to which the fixing of damages for the taking was referred made their report in the alternative. As clarified by stipulation of the parties, the report first assessed the value of the property in question as follows: Land, $1259; small shed, $50; garage, $500; poultry market building, $6500; total, $8309. It then went on to state: 'In the event that the owner of the poultry market building should be compensated for the value of the building with an established poultry slaughtering business therein (because of the nature of said business), the Committee then find the fair market value of said building to be $16,500.00 * * *.' The trial court adopted this alternative finding and rendered judgment assessing damages at a total of $18,309. The question on this appeal is whether the court was correct in accepting the alternative finding as a statement of the true market value of the property. The claim of the plaintiff is that the report is to be construed as adding $10,000 to the market value of the property to compensate for the loss of the poultry slaughtering business and that the loss of the business is not a proper element of damage.

It is the general rule that when real property is the only subject of condemnation nothing should be included in the damages for the loss of a business conducted upon the property unless the statute specifically authorizes it. Orgel, Valuation under Eminent Domain, p. 243; 4 Nichols, Eminent Domain (3d Ed.) § 13.3. Section 932 of the General Statutes authorizes the plaintiff to acquire by eminent domain real property only. The manner of acquisition authorized is that prescribed in General Statutes, § 7181. That section directs that 'just damages' shall be assessed. This obviously means just damages for the property taken, and where, as in this case, the only property authorized to be taken is the real property, it would not be proper for a committee to add damages for the loss of a business which was being conducted on the property at the time of taking. It does not follow, however, that in this case the court erred in adopting the alternative appraisal reported by the committee.

In a case such as the present, where an entire piece of property is taken, the proper measure of damages is the fair market value of the real property. We said in Andrews v. Cox, 127 Conn. 455, 457, 17 A.2d 507, 509: 'Generally speaking, market value is "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." Portland Silk Co. v. City of Middletown, 125 Conn. 172, 174, 4 A.2d 422, 423. From this it follows that in determining market values in awarding damages for land taken, it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land; * * * unless, indeed, the considerations advanced are not a necessary, natural or proximate result of the taking. * * * The determination of the damages to be paid requires the consideration of 'everything by which that value is legitimately affected'; Holley v. [Town and Borough of] Torrington, 63 Conn. 426, 433, 28 A. 613; * * *.' The fair market value of a piece of real property should be determined in the light of the use to which it is being put or the use to which it could be put most advantageously. New York, N. H. & H. R. Co. v. City of New Haven, 81 Conn. 581, 585, 71 A. 780; Campbell v. City of New Haven, 101 Conn. 173, 180, 125 A. 650.

Accordingly, the better reasoned cases hold that, although the value of a business which is being conducted upon the real property condemned may not ordinarily be added to the market value of the realty as damages for the taking, the fact that a given business is in operation on the property should be taken into consideration in determining the market value of the real property if in truth it is a factor in establishing that market value--if, that is, the use of the real property for that purpose enhances the value of it. Edmands v. City of Boston, 108 Mass. 535, 549; King v. Minneapolis Union Ry. Co., 32 Minn. 224, 226, 20 N.W. 135; Pittsburgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 334, 8...