McGrath v. City of Waterbury

• Decision Date: 31 March 1930
• Citation: 111 Conn. 237,149 A. 783
• Court: Connecticut Supreme Court
• Parties: MCGRATH v. CITY OF WATERBURY ET AL.

149 A. 783

111 Conn. 237

MCGRATH v. CITY OF WATERBURY ET AL.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by Daniel J. McGrath against the City of Waterbury and others, as an appeal from the refusal of the bureau of assessments of the city of Waterbury to assess and pay damages to the plaintiff. The case was tried to the court. Judgment for plaintiff, and defendants appeal.

No error.

Charles O'Connor and Edward J. McDonald, both of Waterbury, for appellants.

Nathaniel R. Bronson, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

The plaintiff since 1910 has owned certain premises situated on Bank street in the defendant city. They are largely occupied by a brick building used on the ground floor for mercantile business and on the upper for residential purposes. On the front of the building toward the street are four tiers of bay windows which project from it eighteen and seven-eighths inches. By an old agreement between the owners of the property and the city, the street line across the front of the building was fixed at a distance of about five and one-half feet from it. In 1920 the city established a building line along the face of the front of the building, and, in assessment proceedings then had, benefits and damages to the plaintiff as owner were assessed as equal. In 1925 Bank street was widened, the city undertook to put the street line back to the face of the building, and assessed benefits and damages by reason of this change in the street. This action is an appeal in accordance with the charter of the city, seeking a review of the appraisal of damages and assessment of benefits. The trial court found that the widening of the street would bring the plaintiff within the provisions of a certain ordinance which it construed as forbidding the maintenance of bay windows projecting more than one foot from the wall of the building, and awarded the plaintiff as damages the cost of removing them to the extent necessary to comply with the ordinance, less special benefits accruing to him by reason of the improvement, which it assessed at $1,500.

The appeal contains some sixty assignments of error, many of them argumentative and repetitious, and we follow rather the defendant's claims as developed in its brief. It contends in the first place that, under the ordinance of the city, the plaintiff's right to maintain the bay windows came to an end when the building line was established in 1920, and that it must be assumed that the damages then awarded to him included any loss by reason of interference with them; hence when the street line was made coincident with the old building line, the plaintiff suffered no further damages. Stress was laid on the trial and in argument before us upon a portion of the building ordinance of the city regulating the construction of bay windows and permitting them to project three feet from the wall of any masonry building. But this section of the ordinance obviously had no reference to the rights of the parties as to building over any street or building line, and it is irrelevant to our inquiry. The charter of the defendant authorizes the board of aldermen of the city to " establish building lines beyond which it shall be unlawful to erect any building," provided damages arising out of their establishment can be balanced by special benefits accruing by reason of it. 12 Special Laws, p. 444, § 26. There was in existence in 1920, and still is, an ordinance of the city which provides, among other things, that, after a building line is established, " it shall be unlawful for any person to erect or place, cause to be erected or placed, any...