Platt v. Town of Milford

• Citation: 34 A. 82,66 Conn. 320
• Court: Supreme Court of Connecticut
• Decision Date: 22 June 1895
• Parties: PLATT v. TOWN OF MILFORD.

34 A. 82

66 Conn. 320

PLATT

v. TOWN OF MILFORD.

Supreme Court of Errors of Connecticut.

June 22, 1895.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Action by William Piatt against the town of Milford to recover special damages caused by a change of the grade of a highway on which plaintiff's property abuts. From a judgment entered on the verdict of the jury in favor of plaintiff, defendant appeals. Affirmed.

William B. Stoddard and Arthur C. Graves, for appellant.

Charles S. Hamilton, for appellee.

HAMERSLEY, J. The main question presented by this appeal will be disposed of by ascertaining the meaning of the words "special damage," as used in section 2703 of the General Statutes. The section says that, when an adjoining landowner shall sustain "special damage or receive special benefits" to his property by reason of any change in the grade of a public highway, the municipality making the change shall be liable to pay such person the amount of such special damage, and be entitled to receive from him the amount or value of such special benefits; the same to be ascertained in the manner provided for ascertaining the damages and benefits occasioned by a layout of such highway. Section 2706 says that "if the selectmen of any town, and any person interested in the layout, opening, grading, or alteration of any highway * * * therein, cannot agree as to the damages sustained by, or the benefits accruing to, such person thereby, the selectmen shall apply" for the appointment of a committee "to estimate and assess to each person injured or benefited the damages sustained by or the benefits accruing to him by such layout, opening, or alteration," and such committee shall "make such estimate and assessment." Section 2720 says: "The benefits assessed for any particular layout or alteration, except in a city or borough, shall in no case exceed the damages assessed therefor," together with one-half the estimated cost of construction. This legislation changed the common-law rule based on the arbitrary presumption growing out of a supposed public policy, but not justified by facts, that the original appraisal of damages for taking land for a highway included all damages that might be caused by any alteration of the established grade of the highway, and recognized an absolute liability for damages caused by such alteration on the part of the municipality ordering the same; so that, when such municipality failed to follow the mode prescribed for it by law in ascertaining such damages, the party injured might bring an ordinary action at law, based on such absolute liability, to recover his damages. Healey v. City of New Haven, 49 Conn. 403; Shelton Co. v. Borough of Birmingham, 62 Conn. 459, 26 Atl. 348; Mallory v. Town of Huntington, 64 Conn. 98, 29 Atl. 245.

An inspection of the sections above quoted, and of the language used in kindred legislation, indicates that "special damage" and "damages," as well as "special benefit" and "benefits," are used interchangeably, and for a similar reason, viz. there are no benefits that can be assessed for a public improvement (unless in the ordinary way of taxation) that are not special benefits; and any tenable definition of "special damage," as descriptive of the injury caused to the property of an adjoining landowner by the alteration of a highway as a public improvement, must include every element of any damage that can be appraised for such alteration. It should be remembered that in this state the owners of land adjoining a highway almost invariably own the highway by the same title that they own the adjoining land, subject only to the easement acquired and paid for by the public; and therefore when their land in the highway is so used as to cause a damage to their adjoining land, which, under existing law, has not been paid for, such damage, of necessity, is similar in kind to the damage caused to such adjoining land by the original taking for public use of their land in the highway. It is not clear why section 2703 speaks of this damage as special. The language of the act includes in its range the streets of large cities, where a slight alteration might involve most serious injury, as well as the roads of sparsely-settled towns, where the most extensive cutting and filling could not appreciably affect the value of adjoining land. It is possible "special" was used with its common meaning of "more than ordinary" (ex abundanti cautela), so as to exclude the possibility of mistaking mere road mending for a public improvement in the alteration of an established grade, or of owners of adjoining land recovering in any case the merely nominal damages that might be claimed as resulting from every change. It is also possible that "special" was used simply in recognition of the fact that the damage resulting from such alteration of a highway differs from the damage resulting from the original taking of the land in the highway, in that the latter included also the value of the land taken, while the former is confined to the damage caused to the adjoining land not so taken. But, whatever may have been the reason for using the word, it is certain that "special damage" is not here used with a strictly technical meaning. Dann v. Woodruff, 51 Conn. 206; Ferguson v. Borough of Stamford, 60 Conn. 447, 22 Atl. 782.

"Special damage" has a technical meaning when used in respect to the rules of pleading. It then distinguishes the damage that must be specially pleaded from the damage that need not be so pleaded; but, when so used, it has no relation to the essential right of recovery. The damage, whether specially pleaded or not, is all damage resulting from the injury and all recoverable. There is no distinction except for the purposes of pleading. Section 2703 is not dealing with questions of pleading. It is defining an injury, and providing for the recovery of the damage resulting from such injury. If the word "special" were intended to limit the resulting damage that may be recovered to a defined portion of the damage that might lawfully be recovered except for such limitation, its technical meaning, if it can have any, must be sought, not in the nice distinctions drawn for purposes of pleading in actionable damages, but in the meaning given by the law to "special damage," when the phrase is used to distinguish from the damage that an individual may suffer as the natural consequences of a wrongful act such portion of that damage as he may in a particular class of wrongs be entitled to recover in an action; and this distinction is well defined. "Special damage," when so used, includes the damage peculiar to the plaintiff, and excludes the damage which the plaintiff suffers only in common with the general public; as, in case of a public nuisance, where the damage which one suffers in common with the public generally is not actionable, but the peculiar injury which he alone can suffer is actionable, and is technically called in this connection "special damage." But such use of the word in section 2703 would be inappropriate or superfluous, because no damage that is not peculiar to the individual can result to the owner of land taken for a highway. There can...