Munson v. MacDonald

• Decision Date: 29 July 1931
• Citation: 155 A. 910,113 Conn. 651
• Court: Connecticut Supreme Court
• Parties: MUNSON v. MacDONALD, Highway Commissioner. SAME v. M.A. GAMMINO CONST. CO.

155 A. 910

113 Conn. 651

MUNSON v. MacDONALD, Highway Commissioner.

SAME v. M.A. GAMMINO CONST. CO.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Superior Court, New Haven County; John F. Rufus Booth Judge.

Actions by William D. Munson against John A. MacDonald, Highway Commissioner and against the M. A. Gammino Construction Company, one action claiming a reassessment of damages and benefits and damages for trespass, and the other an injunction and damages. Judgment for the plaintiff on the issue of reassessment of damages and benefits only in the first case, and for the defendant in the second case, and appeal by the plaintiff in both cases.

No error in either case.

Nathaniel R. Bronson, of Waterbury, for appellant.

Ernest L. Averill, Dep. Atty. Gen., Bernard A. Kosicki, Asst. Atty Gen., and Warren B. Burrows, Atty. Gen., for respondents.

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

MALTBIE, C.J.

In July, 1927, the highway commissioner began proceedings to lay out a new highway across the plaintiff's land, acting under the provisions of sections 35 to 37 of chapter 263 of the Public Acts of 1925, as amended by chapter 136 of the Public Acts of 1927. These provide that the highway commissioner may take any land " he may find necessary‘ for the layout, alteration, extension, widening, change of grade, or improvement of any trunk line highway; that the owner of the land taken shall be paid by the state for all damages, and the state shall receive from him the amount or value of all resulting benefits; the assessment of such damages and benefits " shall be made‘ by the commissioner and filed with the clerk of the superior court in the county in which the land is located, who is directed to give notice of it to each owner of land affected, by mail; at any time after the assessment " shall have been made‘ by the commissioner, the physical construction of the improvement may be made. The treasurer is directed to pay any landowner the damages assessed by the commissioner, or reassessed by the court upon appeal, upon certification of the amount by the clerk of the court and acceptance by the property owner, the clerk to give notice of such acceptance to the commissioner; the benefits are madea lien upon the land, interest to commence upon them three months after the date of the filing of such assessment or of the acceptance by the court of a reassessment made upon the appeal; within three months after the acceptance of the assessment or reassessment the commissioner is directed to file for record in the town clerk's office a description of the land taken. Any person claiming to be aggrieved by the assessment may, within six months after it has been filed, appeal to the superior court or, if it is not in session, to a judge thereof, for a reassessment of such damages or benefits so far as they affect him, and the court is then to appoint a state referee to make such reassessment; the referee is to give notice to the parties interested of a time and place of a hearing, is to view the land, and take testimony and reassess the damages and benefits; he is then to report to the court, and, if the report is accepted, the assessment is to be conclusive upon the landowner and the state; and finally, the pendency of the application for reassessment is not to prevent or delay the layout or other improvement of the highway.

On or about July 18, 1927, the commissioner filed an assessment of damages and benefits for the taking of the plaintiff's land in the office of the clerk of the superior court for New Have county, describing the land simply by reference to abutting owners, but referring to an attached blueprint for a more particular description, and copies of the assessment and blueprint were mailed to the plaintiff. The land so described consisted of a strip 140 feet wide and some 900 feet long, containing about three and one-tenth acres. The commissioner fixed the damages at $211.50, and the benefits at $100. In September, 1927, the defendant construction company, in pursuance of a contract with the commissioner, entered upon the land described as taken and proceeded to grade and construct the highway. The strip taken cuts through the plaintiff's land dividing it into two parts. The surface of the ground is very uneven, and in making the highway custs and fills were necessary; for a distance of about 400 feet a rock cut was made, which at one point was about 30 feet deep, and for a distance an embankment was made some 25 feet in height. By writ dated December 19, 1927, the plaintiff began its action against the construction company, and by writ dated January 12, 1928, it began its proceedings against the highway commissioner. In the former, the trial court gave judgment for the defendant, and in the latter it found against the plaintiff certain issues raised by the pleadings which attacked the validity of the layout by the commissioner, and gave judgment appointing a state referee to make a reassessment of benefits and damages. From both judgments, the plaintiff has appealed.

In the action against the construction company, the plaintiff sought damages upon the basis that its entry upon the land and the acts there done by it were illegal, and the correctness of the trial court's decision depends upon a determination of the validity of the proceedings for the layout of the highway. The plaintiff claims that, in the assessment filed by the highway commissioner, the land taken was not described with the requisite certainty. The act makes no express requirement for the filing of any description of the land to be taken in connection with the assessment, any more than does our general condemnation statute provide for such a description in the proceedings to take land. General Statutes, § 5072. It is, of course, necessary that there should be such a description, else there would be no basis upon which a landowner could know what land had been taken, or for a proper appraisal of damages and assessment of benefits. New Haven Water Co. v. Russell, 86 Conn. 361, 367, 85 A. 636; Nichols, Eminent Domain (2d Ed.) § 399. That this should be given in connection with the assessment made and filed by the commissioner is sufficiently implied in the law. The blueprint annexed to the assessment contains such a description of the land taken as would permit its accurate and definite location, unless it be because of the reference where it abuts upon an existing highway at its westerly end to an " approximate highway line.‘ The boundary at this end is in part upon the highway and in part upon the land of an abutting owner. Certainly it would have been better if mere stones had been placed at appropriate points to mark the land taken or other monuments referred to. But in the absence of any finding to the contrary, we can but assume that the boundary line between the plaintiff's property and the abutter as marked on the map was definitely ascertainable upon the ground, and that the highway line is sufficiently definite not to produce a variation materially affecting the amount or location of the land taken.

The plaintiff also attacks the layout upon the ground that a wider stip was taken than was necessary. But the Legislature saw fit to repose in the commissioner the determination as to the amount of land necessary to be taken, and with his exercise of his judgment we cannot interfere unless his action was " unreasonable, or in bad faith or an abuse of the power conferred‘ upon him. Water Commissioners v. Johnson, 86 Conn....